Motion to Vacate under 28 U.S.C. Section 2255: Part Two

MOTION TO VACATE UNDER 28 U.S.C.SECTION 2255: PART TWOt

LESTER B. ORFIELD*

Much of the case law dealing with the motion to vacateunder 28 U.S.C. section 2255 is concerned with the groundsfor which a motion may properly be made. The authorwill consider first the cases involving the Federal Rules ofCriminal Procedure. Other grounds will thereafter be dis-cussed.

XVIII. GROUNDS FOR THE MOTION TO VACATE

UNDER THE FEDERAL RULES OF CRIMINAL PROCEDURE

A. PRELIMINARY PROCEEDINGS

1. Rule 3: The Complaint

A complaint, even if invalid, may not be attacked by motionwhen it has been followed by an indictment.30 9 Insufficiency of acomplaint, however, has been considered in a motion proceeding.3 1"

2. Rule 4: Warrant or Summons upon Complaint; Arrest

In general, the motion procedure is not proper to attack anarrest, 31' although there is occasional contrary authority.312 Ac-

t Part One, dealing generally with the scope and nature of the mo-tion to vacate, appeared in the Fall 1968 issue of the CREIGHTON LAW REVIEW.and may be found at 2 CREIGHTON L. REv. 5 (1968).

* Professor of Law, Indiana University; author, CRIMINAL PROCE-DURES UNDER THE FEDERAL RULES, 6 Vols. and Index Volume (1966-1968).

309. Tanner v. United States, 296 F.2d 218 (10th Cir. 1961).310. United States v. Walker, 197 F.2d 287, 289 (2d Cir.), cert. denied,

344 U.S. 877 (1952) (but the complaint was found to be valid). See 1ORFIELD, CRIMINAL PROCEDURES UNDER THE FEDERAL RULES 110 (1966) (here-inafter cited as ORFIELD).

311. Campbell v. United States, 355 F.2d 394 (7th Cir. 1966); Cox v.United States, 351 F.2d 280 (8th Cir. 1965); Moreland v. United States, 347F.2d 376 (10th Cir. 1965); Foster v. United States, 345 F.2d 675 (6th Cir.1965); Kristiansand v. United States, 319 F.2d 416 (5th Cir. 1963); Warren v.United States, 311 F.2d 673 (8th Cir. 1963); Pearson v. United States, 305F.2d 34, 36 (7th Cir. 1962); United States v. Koptik, 300 F.2d 19 (7th Cir.),cert. denied, 370 U.S. 957 (1962); Tanner v. United States, 296 F.2d 218(10th Cir. 1961); Roddy v. United States, 296 F.2d 9, 10 (10th Cir. 1961);Cauley v. United States, 294 F.2d 318 (9th Cir. 1961); United States v.Shields, 291 F.2d 798 (6th Cir.), cert. denied, 368 U.S. 933 (1961); UnitedStates v. Jenkins, 281 F.2d 193 (3d Cir. 1960); Black v. United States, 269F.2d 38, 42 (9th Cir. 1959), cert. denied, 361 U.S. 938 (1960); Plummer v.United States, 260 F.2d 729, 730 (D.C. Cir. 1958); Edwards v. United States,256 F.2d 707, 708 (D.C. Cir. 1958); Hernandez v. United States, 256 F.2d 342

CREIGHTON LAW REVIEW

cordingly, it has been held that the motion proceeding will not liefor error in the arrest where there is a sufficient ground for de-tention, such as indictment by a grand jury.313 Moreover, wherethe accused pleads guilty and is represented by counsel, the mannerof arrest cannot be attacked by motion except to the extent that itmight bear upon the voluntariness of his plea.3

14 The Ninth Cir-cuit has held that a claim that a prisoner was illegally appre-hended in Mexico by a state officer does not state a ground for amotion to vacate. 31 r A similar result was reached where the pris-oner was kidnapped in a foreign country and brought to theUnited States for trial.3 10 It has also been held that an allega-tion that a jailer did not take a prisoner to a telephone follow-ing his arrest does not assert a proper ground for a motion tovacate.

3 17

To the contrary, however, it has been said that improper arrestwithout a warrant may be attacked by motion.318 In any event,where the validity of an arrest has not been raised at the originaltrial or on appeal therefrom, a. motion to vacate asserting invalidityof the arrest does not lie .3 1

3. Rule 5: Proceedings before the Commissioner

Failure to follow Rule 5 on proceedings before the commis-

(5th Cir. 1958); Morris v. United States, 248 F.2d 618, 619 (D.C. Cir. 1957);Lewis v. United States, 235 F.2d 580 (9th Cir.), cert. denied, 352 U.S. 897(1956); Scherk v. United States, 242 F. Supp. 445, 446 (N.D. Cal. 1965);Shields v. United States, 237 F. Supp. 660, 661 (D. Minn. 1965); McFar-lane v. United States, 231 F. Supp. 191 (S.D.N.Y. 1964); United States v.Edwards, 152 F. Supp. 179, 184, 185 (D.D.C. 1957).

312. Miller v. United States, 356 F.2d 63 (5th Cir.), cert. denied, 384U.S. 912 (1966); United States v. White, 342 F.2d 379 (4th Cir. 1965); Ough-ton v. United States, 310 F.2d 803 (10th Cir. 1962). See 1 ORFILD 169 (1966).

313. Curran v. Shuttleworth, 180 F.2d 780 (6th Cir. 1950).314. Davis v. United States, 347 F.2d 374 (9th Cir. 1965); Richardson v.

United States, 217 F.2d 696 (8th Cir. 1954); United States v. Williams, 212F.2d 786 (7th Cir. 1954); Donovan v. United States, 205 F.2d 557 (10thCir. 1953); Hurst v. United States, 180 F.2d 835 (10th Cir. 1950); UnitedStates v. Bush, 135 F. Supp. 3 (S.D. W. Va. 1955); Cohen v. United States,123 F. $upp. 717 (E.D. Mich. 1954).

315. Boyden v. Smith, 183 F.2d 189 (9th Cir. 1950). The court seemedto imply that the result would be different if a federal officer had appre-hended the prisoner. See also Ford v. United States, 234 F.2d 835 (6thCir. 1956), cert. denied, 352 U.S. 972 (1957); United States v. Bistram, 153F. Supp. 816 (D.N.D. 1957), aff'd, 253 F.2d 610, 611 (8th Cir. 1958).

316. United States v. Sobell, 142 F. Supp. 515 (S.D.N.Y. 1956), aff'd,244 F.2d 520 (2d Cir.), cert. denied, 355 U.S. 873 (1957).

317. Mohler v. United States, 189 F.2d 854 (5th Cir. 1951).318. Norris v. Looney, 232 F.2d 298 (10th Cir. 1956).319. Williams v. United States, 344 F.2d 264 (8th Cir. 1965).

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sioner cannot be raised by motion to vacate 20 Rather, it shouldbe raised by motion to dismiss under Rule 12(b) (2). Furthermore,delay in bringing the prisoner before the commissioner is not aproper ground for a motion,321 even where the defendant volun-tarily pleads guilty.322 It has been held in the Fifth Circuit, how-ever, that, if a prisoner has been prejudiced by the unlawful deten-tion, a motion to vacate lies. 3 23 Of course where the grand jury hasreturned an indictment, there need be no preliminary hearing.3 24

4. Rule 6: The Grand Jury

A motion to vacate does not lie to assert that the grand jurywhich indicted the defendant was composed only of persons whowere registered voters on the rolls of the state. 25 Such an attackmay be made only before trial. Nor is a motion proper whichcontends that a defendant was subpoenaed and compelled to testifybefore the grand jury which indicted him without his havingsigned a waiver of immunity, where he had previously unsuccess-fully raised the same contention on direct appeal.32

In regard to supplying the defendant with the grand juryminutes, the burden is on the defendant to show a particularizedneed therefor, and if he does not, a motion to vacate does not liefor refusal to supply them.3 27

5. Rule 7: The Indictment and the Information

One district court has stated broadly that, "The sufficiency ofan indictment cannot be collaterally attacked. ' ' 32 Other courtshave stated the rule to be that, if the indictment by any reason-able construction charges the offense, no motion lies. 329 It is only"under exceptional circumstances" that a motion to vacate will lie

320. United States v. Morin, 265 F.2d 241, 246 (3d Cir. 1959); UnitedStates v. Bistram, 153 F. Supp. 816, 818 (D.N.D. 1957), alf'd, 253 F.2d 610(8th Cir. 1958).

321. United States v. Miller, 293 F.2d 697 (2d Cir. 1961); United Statesv. French, 274 F.2d 297 (7th Cir. 1960); United States v. Morin, 265 F.2d241, 246 (3d Cir. 1959); Stephenson v. United States, 257 F.2d 175, 177(6th Cir. 1958); Morse v. United States, 256 F.2d 280 (5th Cir. 1958). See1 ORFIELD 290 (1966).

322. Barnhart v. United States, 270 F.2d 866 (10th Cir. 1959).323. Kristiansand v. United States, 319 F.2d 416 (5th Cir. 1963).324. Boone v. United States, 280 F.2d 911 (6th Cir. 1960).325. Perez v. United States, 303 F.2d 441 (5th Cir. 1962).326. Franano v. United States, 303 F.2d 470 (8th Cir. 1962).327. Burke v. United States, 247 F. Supp. 418 (D. Mass. 1965).328. United States v. Kranz, 86 F. Supp. 776, 777 (D.N.J. 1949).329. Grene v. United States, 360 F.2d 585 (5th Cir. 1966); Smith v.

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to attack the sufficiency of an indictment.33 0 Accordingly, it hasbeen held that an indictment for murder alleging that the offensewas committed on a Washington Indian reservation, but failing toallege that the defendant or the victim was an Indian, may beattacked by a motion, even though the defendant has pleadedguilty.331 It has also been held that a motion lies where an indict-ment for unlawful sale of narcotics fails to set forth the name of theperson to whom unlawful sales were made, 38 2 but there is con-siderable authority to the contrary.33 3 Several cases have allowedthe use of the motion procedure to assert that the waiver of indict-ment was not signed in open court, but the courts have ruleduniformly that the signing need not be so made..3

Failure to prosecute by indictment, where an indictment is re-quired, may be attacked by a motion.33 5 Moreover, a motion liesif the indictment is so grossly defective as to violate the Constitu-

United States, 356 F.2d 868, 872 (8th Cir. 1966); Strauss v. United States,347 F.2d 691 (7th Cir. 1965); Fiano v. United States, 291 F.2d 113 (9th Cir.),cert. denied, 368 U.S. 943 (1961); Harris v. United States, 288 F.2d 790 (8thCir. 1961); Schmidt v. United States, 286 F.2d 11 (5th Cir. 1961); Martin v.United States, 285 F.2d 150 (10th Cir. 1960), cert. denied, 365 U.S. 853 (1961);Olson v. United States, 234 F.2d 956 (4th Cir. 1956); Dunn v. United States,234 F.2d 219 (6th Cir.), cert. denied, 352 U.S. 899 (1956); Masi v. UnitedStates, 223 F.2d 132 (5th Cir.), cert. denied, 350 U.S. 919 (1955); Klein v.United States, 204 F.2d 513 (7th Cir. 1953); Keto v. United States, 189 F.2d247 (8th Cir. 1951); Morneau v. United States, 181 F.2d 642 (8th Cir. 1950);Byers v. United States, 175 F.2d 654 (10th Cir. 1949); Dickerson v. UnitedStates, 175 F.2d 440 (4th Cir. 1949); Gould v. United States, 173 F.2d 30(10th Cir.), cert. denied, 337 U.S. 945 (1949); Banks v. United States, 140F. Supp. 837 (S.D. Ind. 1956), aff'd, 239 F.2d 409 (7th Cir.), cert. denied,353 U.S. 960 (1957); United States v. Walker, 132 F. Supp. 432, 436 (S.D.Cal. 1955).

330. United States v. Roberts, 296 F.2d 198, 201 (4th Cir. 1961); Roth v.United States, 295 F.2d 364 (8th Cir. 1961), cert. denied, 368 U.S. 1004 (1962);Barnes v. United States, 197 F.2d 271, 273 (8th Cir. 1952).

331. Hilderbrand v. United States, 261 F.2d 354 (9th Cir. 1958).332. Lauer v. United States, 320 F.2d 187 (7th Cir. 1963); Galarza v.

United States, 229 F. Supp. 167 (D.P.R. 1964).333. Collins v. Markley, 346 F.2d 230 (7th Cir. 1965) (overruling a

prior holding to the contrary); Taylor v. United States, 332 F.2d 918, 921(8th Cir. 1964); Casias v. United States, 331 F.2d 570 (10th Cir. 1964); Clayv. United States, 326 F.2d 196, 198 (10th Cir. 1963); Jackson v. UnitedStates, 325 F.2d 477 (8th Cir. 1963); Scott v. United States, 231 F. Supp. 360(D.N.J. 1964), aff'd, 342 F.2d 813 (3d Cir. 1965); Cochran v. United States,229 F. Supp. 57 (W.D. Ky. 1964).

334. Ching v. United States, 292 F.2d 31 (10th Cir. 1961) (but the courtruled that the signing need not be made in open court); Kossin v. UnitedStates, 235 F.2d 188 (6th Cir. 1956); O'Brien v. United States, 233 F.2d 246(5th Cir. 1956); United States v. Jones, 177 F.2d 476 (7th Cir. 1949).

335. Oughton v. United States, 310 F.2d 803 (10th Cir. 1962); Pugh v.United States, 212'F.2d 761, 764 (9th Cir. 1954). See 1 ORFIELD 658 (1966).

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tion.3 36 If a defendant has been convicted of a crime not chargedin the indictment,3 3 7 or if he has been convicted of a nonexistentoffense even though he pleaded guilty,38 or if the informationshows on its face that the statute of limitations has run,3 3 9 there isadequate ground for a motion to vacate. The motion to vacatedoes not lie, however, because of duplicity in the indictment, or be-cause of failure to cite the statute making the act complained of acrime.3 40 Nor will a motion lie for a slight variance between theindictment and proof.3 4 1 An assertion that the statute upon whichthe indictment was based has been repealed has been held not tostate a proper ground for allowing the motion to vacate. 342

In one case a motion to vacate was denied where the groundasserted was that the indictment had been amended as to form onmotion of the United States, but without objection by the defendantor his counsel.3 43 It has also been held that denial of a bill ofparticulars is not ground for a motion to vacate where the defend-ant shows no prejudice.344

B. ARRAIGNMENT AND PREPARATION FOR TRIAL

1. Rule 10: Arraignment

The Tenth Circuit has held that a motion to vacate does not liebecause the defendant was arraigned before one judge and triedbefore another.3 45 It has also been held, in the Fifth Circuit, thatthe fact that an official court reporter was not present at thearraignment is not a ground for motion to vacate, where no courtreporter had been appointed by the date of the arraignment and

336. United States v. Dickerson, 337 F.2d 343, 345 (6th Cir. 1964).337. Ornelas v. United States, 236 F.2d 392 (9th Cir. 1956).338. United States v. Gallagher, 94 F. Supp. 640, 642 (W.D. Pa. 1950).

See also Beam v. United States, 364 F.2d 756 (6th Cir. 1966); Kolaski v.United States, 362 F.2d 847 (5th Cir. 1966); Roberts v. United States, 331 F.2d 502 (9th Cir. 1964); United States v. Rider, 282 F.2d 476 (9th Cir. 1960)(conviction after trial); United States v. Malone, 231 F. Supp. 174 (S.D. Tex.1964) (indictment dismissed); United States v. Puncsak, 146 F. Supp. 523, 526(D. Alas. 1956); Taylor v. United States, 111 F. Supp. 159, 162 (S.D.N.Y.1953).

339. United States v. Harris, 133 F. Supp. 796 (W.D. Mo. 1955).340. Robison v. United States, 329 F.2d 156 (9th Cir. 1964).341. Moore v. United States, 337 F.2d 350 (8th Cir. 1964), cert. denied,

379 U.S. 994 (1965); Bram v. United States, 302 F.2d 58 (8th Cir.), cert.denied, 371 U.S. 926 (1962); Gregori v. United States, 243 F.2d 47 (5thCir. 1957).

342. United States v. Monti, 100 F. Supp. 209, 211 (E.D.N.Y. 1951).343. Del Piano v. United States, 240 F. Supp. 687, 689 (E.D. Pa. 1965).344. United States v. Russo, 260 F.2d 849 (2d Cir. 1958); Jones v.

United States, 223 F. Supp. 454 (E.D. Mo. 1963).345. Palmer v. United States, 249 F.2d 8 (10th Cir. 1957).

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an appropriation for salaries had not at that time been finallyenacted.

46

In one case it was held that failure of the Government to sup-ply a copy of the indictment was not a ground for a motion.147

2. Rule 11: Pleas; Guilty Pleas

A motion to vacate properly lies if the court was without juris-diction to accept a plea of guilty because the act complained of wasnot a crime.348 Accordingly, it has been held that where a co-defendant took an appeal from the conviction after trial and thecourt of appeals found that the facts proved showed no offense, adefendant who had pleaded guilty was allowed to move to vacateand was discharged.3 49 While a truly coerced plea of guilty maybe attacked by motion,35 0 the mere fact that the plea resulted frompolice procedures, such as making known the admissions of a con-federate, is not a sufficient ground for a motion to vacate.3 1 1

Furthermore, where a guilty plea is entered under a misconceptionof the offense involved, the motion to vacate is a proper vehicle ofattack.3 52 Thus, where a plea of guilty is based upon a mistakenbelief that an automobile was in fact stolen, the sentence may bevacated on the defendant's motion . 85 3

A guilty plea may be attacked by motion to vacate where thedefendant has pleaded guilty without being advised by the courtof- the nature of the charge and the range of punishment.3 5 4 Like-

346. United States v. Christakos, 83 F. Supp. 521, 523 (N.D. Ala.), aff'd,178 F.2d 84 (5th Cir. 1949).

347. Yodock v. United States, 97 F. Supp, 307, 311 (M.D. Pa. 1951).But the court ignored Rule 10 and stated that there was no duty to supply acopy of the indictment except in capital cases. See also Richardson v.United States, 217 F.2d 696, 698 (8th Cir. 1954); Davis v. United States, 210F.2d 118, 120 (8th Cir. 1954); Fihaley v. United States, 208 F.2d 793 (5thCir. 1953); Ray v. United States, 192 F.2d 658 (5th Cir. 1951). See 2 OnnELD33 (1966).

348. La Fever v. United States, 257 F.2d 271 (7th Cir. 1958).349. United States v. Smith, 156 F. Supp. 479 (W.D. Mo. 1957).350. Machibroda v. United States, 368 U.S. 487, 493 (1962); Schiebelhut

v. United States, 357 F.2d 743 (6th Cir. 1966) (plea of nolo contendere);Howell v. United States, 355 F.2d 173 (10th Cir. 1966); Weed v. UnitedStates, 342 F.2d 971 (5th Cir. 1965); United States v. Colson, 230 F. Supp.953 (S.D.N.Y. 1964); United States v. Tateo, 214 F. Supp. 560 (S.D.N.Y.1963).

351. Watts v. United States, 278 F.2d 247, 249 (D.C. Cir. 1960).352. Ex parte Atkinson, 84 F. Supp. 300, 304 (E.D.S.C. 1949).353. United States v. O'Carter, 91 F. Supp. 544 (S.D. Iowa 1949).354. Snell v. United States, 174 F.2d 580 (10th Cir. 1949). See also

United States v. Kratz, 97 F. Supp. 999 (D. Neb. 1951). But the range ofpunishment is said to be only one factor in Verdon v. United States, 296F.2d 549, 553 (8th Cir. 1961).

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wise, where a court imposes a greater sentence than that which,prior to accepting the defendant's guilty plea, it has informed him isthe maximum possible sentence, the sentence may be attacked bythe motion to vacate.8 55 If the judge has failed to determine thatthe guilty plea was voluntary and intelligent, 356 or has coercedthe plea,8 5 7 the motion to vacate will lie. Moreover, erroneousadvice by a Government attorney to an unrepresented defendantis a proper basis for a motion, 358 and if the defendant appearswithout counsel, leave to withdraw a guilty plea should be freelygranted. 5 9 It has also been held that the motion procedure isproper where the defendant has not been advised by the court orhis counsel that there would be no possibility of probation or paroleif he pleaded guilty. 60 In one case in the Ninth Circuit, where thedefendant entered a guilty plea upon the understanding that hewould receive no greater sentence than he had already received onanother charge, but later the judge determined that the minimumrequired sentence was greater than that previously indicated andimposed it, a motion to vacate the sentence so imposed wasgranted.861

On the other hand, it is not a proper ground for the motion tovacate, where the defendant has pleaded guilty, that the defendantwas not properly arraigned,36 2 or that a plea of nolo contenderewas made while the prisoner was in prison clothes. 68 Several caseshave denied motions to vacate guilty pleas asserting that the de-fendant had been charged as an adult but not advised as to theconsequences of sentencing under the Federal Youth CorrectionsAct.36 4 It is not a ground for the motion that the defendant re-

355. Workman v. United States, 337 F.2d 226 (1st Cir. 1964).356. Rimanich v. United States, 357 F.2d 537 (5th Cir. 1966); Heiden v.

United States, 353 F.2d 53 (9th Cir. 1965); Vicory v. Taylor, 338 F.2d 954(10th Cir. 1964); Burgess v. United States, 319 F.2d 345 (9th Cir. 1963);Ellis v. United States, 313 F.2d 848 (7th Cir. 1963); Nichols v. United States,310 F.2d 374 (5th Cir. 1962); Domenica v. United States, 292 F.2d 483, 485(1st Cir. 1961); Arnold v. United States, 271 F.2d 440 (4th Cir. 1959);Kennedy v. United States, 249 F.2d 257 (5th Cir. 1957).

357. Euziere v. United States, 249 F.2d 293 (10th Cir. 1957).358. Smith v. United States, 309 F.2d 165 (9th Cir. 1962).359. DeLeon v. United States, 355 F.2d 286 (5th Cir. 1966).360. Munich v. United States, 337 F.2d 356, 361 (9th Cir. 1964) (nar-

cotics violation).361. Smith v. United States, 321 F.2d 954 (9th Cir. 1963).362. United States v. Zavada, 291 F.2d 189, 191 (6th Cir. 1961).363. Henley v. United States, 207 F.2d 407 (4th Cir. 1953).364. 18 U.S.C. §§ 5005-26 (1964). See Pilkington v. United States, 315

F.2d 204 (4th Cir. 1963). See also Kotz v. United States, 353 F.2d 312 (8thCir. 1965); Freeman v. United States, 350 F.2d 940 (9th Cir. 1965); King v.United States, 346 F.2d 159 (10th Cir. 1965); Chapin v. United States, 341

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ceived a longer sentence than he anticipated.36 Furthermore, onewho has pleaded guilty cannot on motion to vacate raise the issueof guilt.366

In regard to the necessity of a hearing where the defendantseeks to raise the issue of the validity of a guilty plea by the pro-cedure provided for in section 2255, it has been held that the alle-gations of a prisoner that his plea of guilty was not voluntarilyand intelligently made, and that the Assistant United States Attor-ney promised him that if he would waive assistance of counsel andplead guilty his girl friend and co-defendant would not be prose-cuted, entitled the prisoner to a hearing even though his allegationswere considered not to have been controverted. 67 Likewise, it hasbeen held that a prisoner is entitled to a hearing on a motion attack-ing his sentence on the ground that he was induced to plead guiltyby an officer's promise that his woman companion would go free. 86s

Similarly, where the defendant's claim was that he had pleadedguilty on counsel's advice that the sentence on a guilty plea wouldbe very light, but received a greater sentence, he was entitledto a hearing.3 69 It has also been held that a hearing is requiredwhere the defendant has asserted that he was unable to entera plea of guilty knowingly and intelligently due to a depriva-tion of narcotics which affected his mental condition.3 70 Like-wise, where a defendant has asserted that his plea of guilty wasnot voluntary, but was entered because of concern for his wife, whowas in need of medical treatment, a hearing was required to make adetermination as to the truth of the assertion.3 71 In one case,

F.2d 900 (10th Cir. 1965); Marvel v. United States, 335 F.2d 101 (5th Cir.1964) (one judge dissented); Rawls v. United States, 330 F.2d 777 (5th Cir.1964); Knott v. United States, 254 F. Supp. 984 (D. Alas. 1966); Brown v.United States, 248 F. SuDp. 146 (D. Minn. 1965) (citing a large number ofcases); Yates v. United States, 245 F. Supp. 147 (E.D. Va. 1965); Doshier v.United States, 237 F. Supp. 388 (N.D. Miss. 1964); Williams v. UnitedStates, 231 F. Supp. 382 (E.D. Ky. 1964).

365. Smith v. United States, 265 F.2d 99 (D.C. Cir.), cert. denied, 361US. 843 (1959); United States v. Page, 229 F.2d 91 (2d Cir. 1956); Jacksonv. United States, 214 F.2d 485 (4th Cir.), cert. denied, 348 U.S. 900 (1954);Sweeden v. United States, 209 F.2d 524, 527 (8th Cir. 1954); Meredith v.United States, 208 F.2d 680 (4th Cir. 1953); Tabor v. United States, 203 F.2d948 (4th Cir.), cert. denied, 345 U.S. 1001 (1953).

366. Hornbrook v. United States, 216 F.2d 112 (5th Cir. 1954); Russell v.United States, 212 F.2d 87 (4th Cir.), cert. denied, 347 U.S. 1020 (1954).

367. Teller v. United States, 263 F.2d 871 (6th Cir. 1959).368. Hassell v. United States, 287 F.2d 646 (9th Cir. 1961).369. Shelton v. United States, 292 F.2d 346 (7th Cir. 1961). See also

Scott v. United States, 349 F.2d 641 (6th Cir. 1965); Romero v. UnitedStates, 327 F.2d 711 (5th Cir. 1964).

370. Alexander v. United States, 290 F.2d 252, 254 (5th Cir. 1961).371. Weir v. United States, 363 F.2d 29 (5th Cir. 1966).

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where the district court rejected the prisoner's motion to vacate asentence after a guilty plea without having required any reply bythe Government as to the prisoner's allegations of a promise of sus-pended sentence, the court of appeals remanded the case to the dis-trict court to await the Government's reply so that it could be deter-mined whether a hearing was necessary. 7 2

3. Rule 12: Pleas and Motions before Trial; Defenses andObjections

The Supreme Court held in 1958 that a motion to vacate maybe made to show double jeopardy. 373 Justice Clark dissentingthought that the motion to vacate did not lie for the purpose ofstatutory construction as to consecutive sentences,37 4 but the ma-jority did not pass on the question, since it was not raised in thelower courts.

Several cases have held that when the defense of entrap-ment has been fully presented at the trial, it cannot be raisedon motion to vacate.37 5 Moreover, the defense is waived where the

372. Trotter v. United States, 359 F.2d 419 (2d Cir. 1966).373. Ladner v. United States, 358 U.S. 169, 172 (1958), noted, 28 FORD-

HAM L. REV. 152 (1959); 8 KAN. L. REV. 162 (1959); 19 LA. L. REV. 868 (1959).See also Vaccaro v. United States, 360 F.2d 606 (5th Cir. 1966); Freeman v.United States, 350 F.2d 940, 943 (9th Cir. 1965); Kessel v. United States, 303F.2d 563 (8th Cir. 1962); McGann v. United States, 261 F.2d 956 (4th Cir.1958); Dailey v. United States, 259 F.2d 433 (7th Cir. 1958) (motion granted);United States v. Drake, 250 F.2d 216 (7th Cir. 1957) (motion granted);Kitts v. United States, 243 F.2d 883 (8th Cir. 1957) (motion granted); Hay-man v. United States, 241 F.2d 188, 191 (9th Cir. 1957); McDonald v. Looney,238 F.2d 844 (10th Cir. 1956); United States v. Johnson, 235 F.2d 159 (7thCir. 1956); Rayborn v. United States, 234 F.2d 368 (6th Cir. 1956); Jordan v.United States, 233 F.2d 362, 367 (D.C. Cir.), vacated on other grounds, 352U.S. 904 (1956); Bocock v. United States, 216 F.2d 465 (7th Cir. 1954); UnitedStates v. Meyers, 139 F. Supp. 724, 726 (D. Alas. 1956). There is occasionalcontrary authority. See, e.g., Richards v. United States, 342 F.2d 962, 963(8th Cir. 1965); Boisen v. United States, 181 F. Supp. 349 (S.D.N.Y. 1960)(jeopardy need not be passed upon; but the court found no jeopardy).See Holtzoff, Collateral Review of Convictions in Federal Courts, 25 BOSTONU. L. REV. 26, 30-31 (1945); Orfield, Double Jeopardy in Federal CriminalCases, 3 CALIF. WESTERN L. REV. 76, 120 (1967); Peters, Collateral Attackby Habeas Corpus upon Federal Judgments in Criminal Cases, 23 WASH.L. REV. 87, 91-92 (1948).

374. Ladner v. United States, 358 U.S. 169, 180 (1958).375. Grisham v. United States, 344 F.2d 689 (10th Cir. 1965); Matysek

v. United States, 339 F.2d 389, 391 (9th Cir. 1964); Anderson v. UnitedStates, 338 F.2d 618 (9th Cir. 1964) (whether there be a trial or guiltyplea); Moore v. United States, 334 F.2d 25 (5th Cir. 1964); United States v.Bailey, 331 F.2d 218 (7th Cir. 1964); Simmons v. United States, 302 F.2d 71,78 (3d Cir. 1962); United States v. Ramsey, 297 F.2d 503 (7th Cir. 1962);Ellison v. United States, 283 F.2d 489 (10th Cir. 1960), cert. denied, 365U.S. 885 (1961); Way v. United States, 276 F.2d 912 (10th Cir. 1960); Black

1969]


defendant has pleaded guilty and has failed to appeal from his sen-tencing. 76 A single case allowed a motion raising for the first timethe defense of entrapment on the ground of violation of due processof law under the Fifth Amendment, 77 but a year later the samecourt rejected this approach. 878

Furthermore, the statute of limitations may not be raised forthe first time on motion to vacate.379 However, in one case theassertion that the statute of limitations as amended was ex postfacto was found to have been properly raised by motion,38 0 sincethe question whether a statute is being applied as an ex post factolaw may be raised by motion.8 8 '

4. Rule 14: Relief from Prejudicial Joinder

Refusal to grant the defendant a severance and a separate trialis not ground for a motion.88 2

5. Rule 16: Discovery and Inspection

A motion alleging improper denial of discovery must not bevaguely phrased.8 8

v. United States, 269 F.2d 38, 42 (9th Cir. 1959), cert. denied, 361 U.S. 938(1960); Turner v. United States, 262 F.2d 643 (8th Cir. 1959); UnitedStates v. Lyons, 256 F.2d 749 (2d Cir. 1958); Stanley v. United States, 239F.2d 765 (9th Cir. 1956); United States v. Davis, 233 F.2d 646, 648 (7th Cir.1956); Frazer v. United States, 233 F.2d 1 (9th Cir. 1956); Davis v. UnitedStates, 205 F.2d 516 (5th Cir. 1953); Jones v. United States, 252 F. Supp. 781(W.D. Okla. 1966); Moore v. United States, 236 F. Supp. 621, 623 (N.D. Tex.1962); United States v. Daniels, 191 F. Supp. 129, 131 (E.D. Pa. 1961); Hayesv. United States, 194 F. Supp. 807 (D. Colo. 1960), aff'd, 292 F.2d 272 (10thCir. 1961); United States v. Buford, 165 F. Supp. 940 (E.D. Wis. 1958). SeeOrfield, The Defense of Entrapment in the Federal Courts, 1967 DUKE L.J.39, 64.

376. Ruiz v. United States, 328 F.2d 56 (9th Cir. 1964); United Statesv. Lyons, 256 F.2d 749 (2d Cir. 1958); Kaye v. United States, 235 F.2d 187(6th Cir. 1956); Mixon v. United States, 214 F.2d 364 (5th Cir. 1954).

377. Banks v. United States, 249 F.2d 672, 674 (9th Cir. 1957).378. Banks v. United States, 258 F.2d 318 (9th Cir.), cert. denied,

358 U.S. 886 (1958).379. United States v. Taylor, 207 F.2d 437 (2d Cir. 1953); United

States v. Gelb, 175 F. Supp. 267, 270 (S.D.N.Y. 1959). See 2 ORFIELD 244(1966).

380. Clements v. United States, 266 F.2d 397 (9th Cir. 1959).381. See United States v. Salzano, 138 F. Supp. 72, 75 (S.D.N.Y. 1956).382. Dauer v. United States, 204 F.2d 141 (10th Cir. 1953). See also

Cardarella v. United States, 351 F.2d 443 (8th Cir. 1965); Azzone v. UnitedStates, 245 F. Supp. 145 (D. Minn. 1965); 2 ORFIELD 422 (1966).

383. United States v. Savage, 309 F.2d 142 (2d Cir. 1962).

[Vol. 2

MOTION TO VACATE

6. Rule 17: Subpoena

Denial of a request that witnesses be summoned for the trialmay not be attacked by motion. 8 4 Moreover, failure of the de-fendant's attorney to subpoena certain witnesses upon his opinionthat he cannot subpoena such witnesses, even if erroneous, is notground for a motion. 8 5

C. VENUE

1. Rule 18: Place of Prosecution and Trial

A motion to vacate lies as to a trial for treason committedabroad, conducted in a district in which the defendant was notfound. 8 6

2. Rule 20: Transfer from the District for Plea and Sentence

In a motion proceeding, the Court of Appeals for the ThirdCircuit upheld Rule 20, which allows a defendant to plead guiltyin a district other than that of commission of the offense.38 7 Sev-eral cases have considered in motion proceedings the questionwhether or not the procedure provided for in Rule 20 has beenfollowed."""

3. Rule 21: Transfer from the District for Trial

The Sixth Circuit has held that where the alleged error of thedistrict court in denying a motion for change of venue because ofadverse newspaper publicity was raised on appeal from convictionand decided against the defendant, the question could not again beraised on motion to vacate.3 8 9

384. United States v. Shields, 291 F.2d 798 (6th Cir.), cert. denied, 368U.S. 933 (1961). See 2 ORFIELD 656-58 (1966).

385. Flourre v. United States, 217 F.2d 132 (6th Cir. 1954).386. United States v. Provoo, 215 F.2d 531, 537 (2d Cir. 1954). See 2

ORFIELD 760-61 (1966). But see United States v. Monti, 168 F. Supp. 671,673 (E.D.N.Y. 1958).

387. United States v. Gallagher, 183 F.2d 342, 345 (3d Cir. 1950). Aconcurring judge thought that the defendant should have proceeded underRule 32(d) to withdraw his guilty plea. See also Earnest v. United States,198 F.2d 561 (6th Cir. 1952).

388. Shores v. United States, 352 F.2d 485 (5th Cir. 1965), cert. denied,382 U.S. 1029 (1966); Hollinger v. United States, 345 F.2d 179 (5th Cir.1965); Nanney v. United States, 301 F.2d 57 (10th Cir. 1962); O'Brien v.United States, 233 F.2d 246 (5th Cir. 1956); Hornbrook v. United States,216 F.2d 112 (5th Cir. 1954); United States v. Bistram, 153 F. Supp. 816(D.N.D. 1957); United States v. Wilson, 133 F. Supp. 664 (E.D. La. 1955).

389. VanBuskirk v. United States, 343 F.2d 158 (6th Cir. 1965).

19691


D. TRIAL

1. Rule 23: Trial by Jury or by the Court

The procedure provided by 28 U.S.C. section 2255 cannot be usedto obtain a retrial according to a procedure which the defendantvoluntarily waived at his first trial.3 90 Moreover, a motion to va-cate does not lie merely because the defendant's consent to trial bya jury of eleven was not in writing as required by Rule 23(b) of theFederal Rules of Criminal Procedure.3 91

2. Rule 24: Trial Jurors

If the prisoner has complained that something prejudicial, suchas selection of a biased juror, occurred during the course of the trialbut was not recorded, he should move to vacate and offer proof ofany matters not of record properly alleged in support of the mo-tion. 92 A motion to vacate lies on the ground that the defendanthas been tried by a jury which was not impartial. 93 However, thequestion of whether the defendant was deprived of his right to afair and impartial jury because of improper questioning of the jurypanel should not be raised by motion to vacate, but by motion fornew trial.3

94

It has been held that the constitutional right to an impartialjury is not violated, and therefore a motion to vacate does not lie,because of a remark by the trial judge at the outset of the trial thatthe court would not ask prospective jurors to disclose their specificaddresses, since "this court has no intention that any of these jurorsare going to be disturbed during the course of this trial. 3 95 Fur-thermore, the failure of a stenographer to stenographically reportan order is not ground for a motion,396 nor is absence of the judgeduring part of the selection, impaneling, and voir dire exami-nation.397 Similarly, it has been held that selection of the jury in

390. McDonald v. United States, 282 F.2d 737 (9th Cir. 1960); UnitedStates v. Rosenberg, 200 F.2d 666, 668 (2d Cir. 1952), cert. denied, 345U.S. 965 (1953).

391. Rogers v. United States, 319 F.2d 5 (7th Cir. 1963); Horne v. UnitedStates, 264 F.2d 40, 41 (5th Cir. 1959). See 3 ORFIELD 169 (1966).

392. United States v. Brawer, 207 F.2d 111 (3d Cir. 1953).393. Jordan v. United States District Court, 233 F.2d 362, 365 (D.C.

Cir.), vacated on other grounds, 352 U.S. 904 (1956).394. Rubenstein v. United States, 227 F.2d 638, 643 (10th Cir. 1955),

cert. denied, 350 U.S. 993 (1956).395. Vandergrift v. United States, 313 F.2d 93, 94 (9th Cir. 1963).396. United States v. Stirone, 222 F. Supp. 507 (W.D. Pa. 1963), aff'd,

341 F.2d 253 (3d Cir.), cert. denied, 381 U.S. 902 (1965).397. Haith v. United States, 342 F.2d 158 (3d Cir. 1965); Stirone v.

United States, 341 F.2d 253 (3d Cir.), cert. denied, 381 U.S. 902 (1965).

(Vol. 2

MOTION TO VACATE

the absence of the trial judge in accordance with the prevailingpractice in the district is not a ground for motion to vacate, wherethe defendant did not object when informed that the trial judgewould not be present, and it appeared that no objections arose dur-ing the selection by counsel.3 98 It has also been held that a motionto vacate does not lie to attack distribution of a "juror's handbook,"where there has been no challenge to the venire.3 99 If the d6fend-ant fails to raise the issue at the trial when chargeable with noticeof distribution of the handbook, the motion does not lie.40 0

3. Rule 26: Evidence

In general, errors in the admission of evidence cannot be as-serted as grounds for a motion, 40 1 but possibly the motion will lie inextreme cases.40 2 Moreover, a motion will not be granted because ofevidence which could have been produced at the trial but wasnot.

40 3

In one case the right to a public trial was raised by motion tovacate, but no denial of the right was found on the facts. 40 4

A motion to vacate has been held not to lie where the groundasserted was that the Government had been permitted to questionthe defendant at his trial as to prior convictions, over the objectionthat he had not put his character in issue.40 5

Where the Government has knowingly and falsely procuredand used perjured testimony, a motion lies,40 1 but if the perjury

398. Haith v. United States, 231 F. Supp. 495 (E.D. Pa. 1964), alf'd, 342F.2d 158 (3d Cir. 1965).

399. United States v. Mathison, 159 F. Supp. 811, 814 (E.D. Wis.), aft'd,256 F.2d 803, 805 (7th Cir. 1958).

400. United States v. De Marie, 261 F.2d 477, 479 (7th Cir. 1958).401. Kelly v. United States, 350 F.2d 398 (5th Cir. 1965); Morton v.

United States, 229 F.2d 793 (D.C. Cir. 1955); Smith v. United States, 187F.2d 192, 197 (D.C. Cir. 1950), cert. denied, 341 U.S. 927 (1951); Morton v.Steele, 179 F.2d 956 (8th Cir. 1950); Hurst v. United States, 177 F.2d 894(10th Cir. 1949); United States v. Meyers, 139 F. Supp. 724, 726 (D. Alas.1956). See 3ORFIELD 563-65 (1966).

402. Malone v. United States, 257 F.2d 177 (6th Cir. 1958).403. Goss v. United States, 179 F.2d 706 (6th Cir. 1949).404. United States v. Geise, 158 F. Supp. 821, 824 (D. Alas.), aff'd,

262 F.2d 151 (9th Cir. 1958), cert. denied, 361 U.S. 842 (1959). See 3ORFIELD 441 (1966).

405. Delegal v. United States, 363 F.2d 433 (5th Cir. 1966).406. James v. United States, 175 F.2d 769 (5th Cir. 1949). The prisoner

is entitled to a hearing. See also United States v. Barillas, 291 F.2d 743(2d Cir. 1961); Smith v. United States, 259 F.2d 125 (9th Cir. 1958); UnitedStates v. Swope, 232 F.2d 853 (5th Cir. 1956); United States v. Derosier, 229F.2d 599, 601 (3d Cir. 1956); United States v. Rutkin, 212 F.2d 641, 644 (3dCir. 1954). See 3 ORFIELD 765 (1966).

1969]


is not knowingly used, the motion will be denied.40 7 However, inone case a motion asserting use of testimony acknowledged by theGovernment to be false, was denied, where the prisoner had beenrepresented by experienced counsel, more than eight years hadelapsed since his trial, and no allegation of the nature and relevancyof the false testimony was made. 40 In any event there must be ahearing where the Government has failed to deny an allegationthat it has knowingly used perjured testimony.409 If the prisonerknows of such use at the time of trial, however, he may not raisethe issue by motion to vacate.410

The deliberate suppression of evidence favorable to the defend-ant by the prosecution is a sufficient ground for the motion to va-cate,411 but a hearing on the issue may be refused where the de-fendant has had full opportunity at the trial to raise the issue. 41 2

Failure to allow the discovery of official reports during the trialcannot be raised on motion to vacate, since the proper remedy isappeal from the conviction.41 3 The Jencks Act applies to hearingson motion to vacate. Thus, the Tenth Circuit has considered onappeal a case involving misapplication of the Jencks Act againstthe Government in a hearing on a motion to vacate.4 14

It has been held that a failure in a capital case to supply a listof veniremen and witnesses three days prior to trial is not ground

407. Smith v. United States, 358 F.2d 683 (3d Cir. 1966); Weaver v.United States, 263 F.2d 577 (8th Cir.), cert. denied, 359 U.S. 1014 (1959);Taylor v. United States, 229 F.2d 826, 832 (8th Cir.), cert. denied, 351 U.S.986 (1956); United States v. Spadafora, 200 F.2d 140 (7th Cir. 1952); Ryles v.United States, 198 F.2d 199 (10th Cir. 1952); Estes v. United States, 254 F.Supp. 314, 318 (W.D. Tex. 1966); Perry v. United States, 209 F. Supp. 691(W.D. Ark. 1962); United States v. Gonzalez, 33 F.R.D. 280 (S.D.N.Y. 1960);Smith v. United States, 141 F. Supp. 245 (S.D. Tex. 1956); United States v.Kaplan, 101 F. Supp. 7, 13 (S.D.N.Y. 1951); United States v. Sanders, 92 F.Supp. 447 (D. Md. 1950).

408. United States v. Wetherbee, 175 F.2d 834 (2d Cir. 1949).409. Dunn v. United States, 245 F.2d 407 (6th Cir. 1957).410. Green v. United States, 158 F. Supp. 804, 809 (D. Mass. 1958).411. Link v. United States, 352 F.2d 207, 212 (8th Cir. 1965); Kyle v.

United States, 297 F.2d 507, 511 (2d Cir. 1961); United States v. Rutkin,212 F.2d 641, 644 (3d Cir. 1954). See 3 ORFIELD 765 (1966).

412. Kyle v. United States, 266 F.2d 670, 672 (2d Cir.), cert. denied,361 U.S. 870 (1959).

413. Beavers v. United States, 351 F.2d 507, 509 (9th Cir. 1965); Blackv. United States, 269 F.2d 38, 42 (9th Cir. 1959), cert. denied, 361 U.S. 938(1960); United States v. Gandia, 255 F.2d 454 (2d Cir. 1958); United Statesv. Angelet, 255 F.2d 383 (2d Cir. 1958).

414. United States v. Kelly, 269 F.2d 448 (10th Cir. 1959), cert. denied,362 U.S. 904 (1960). See also United States v. White, 342 F.2d 379, 382n.4 (4th Cir. 1965); United States v. Carbone, 341 F.2d 4 (2d Cir: 1965);Matysek v. United States, 339 F.2d 389, 395 (9th Cir. 1964); Burke v.United States, 247 F. Supp. 418 (D. Mass. 1965). See 3 ORFIELD 627 (1966).

[Vol. 2

MOTION TO VACATE

for motion to vacate, where the defendant has not objected to theimpaneling of the jury or to the calling of any of the witnesses. 415

Moreover, failure in a noncapital case to supply a list of witnesses isnot ground for a motion to vacate.416

The Court of Appeals for the District of Columbia has heldthat denial of the defendant's right to testify is an adequate groundfor a motion to vacate,41 7 but there is recent contrary authority.41

In one case a prisoner acting as his own counsel was allowedto -raise the issue that evidence of other unrelated offenses wasimproperly adduced at his trial.419

In regard to the question of informer testimony, it has beenheld that failure of the Government to divulge the name of an in-former who facilitated the defendant's arrest is not a ground for amotion to vacate.420 Nor is failure of the Government to producean informer as a witness, since the Government need not place allits witnesses on the stand.421

It has also been held that the court need not consider, in pro-ceedings for motion to vacate where it has been asserted that awoman allowed to testify against the defendant at his trial was hiswife, whether the state court had jurisdiction based upon the wife'sresidence to grant her a divorce.422

Violation of the privilege against self-incrimination may justifya motion to vacate. Accordingly, where the United States Attorneyremarked in argument to the jury that there had been no denial bythe defendant that he had committed the crime, a motion wasgranted.423 But it has also been held that the motion does not liebecause of the prosecutor's reference to the defendant's failure totestify, where there has been no objection or motion for new trial.424

That the effect of a statute was to require self-incrimination hasbeen raised by motion to vacate.425

415. United States v. Morris, 178 F. Supp. 694, 698 (E.D. Pa. 1959).416. Smith v. United States, 216 F. Supp. 809, 812 (S.D. Cal. 1961).417. Mason v. United States, 193 F.2d 23 (D.C. Cir. 1951).418. Allen v. United States, 245 F. Supp. 107 (D.N.H. 1965).419. United States v. Clebak, 228 F.2d 618 (3d Cir. 1955).420. United States v. Gonzalez, 321 F.2d 638 (2d Cir. 1963).421. Eberhart v. United States, 262 F.2d 421 (9th Cir. 1958). See also

United States v. Comulada, 155 F. Supp. 266 (S.D.N.Y. 1957).422. Perry v. United States, 297 F.2d 100 (8th Cir. 1962).423. United States v. Hamilton, 97 F. Supp. 123, 127 (S.D. W. Va. 1951).

See also Redfield v. United States, 315 F.2d 76 (9th Cir. 1963).424. Campbell v. United States, 355 F.2d 394 (7th Cir. 1966).425. Dugan v. United States, 341 F.2d 85 (7th Cir. 1965); Russell v.

United States, 306 F.2d 402, 411 (9th Cir. 1962); United States v. Fleish,227 F. Supp. 967 (E.D. Mich. 1964); Pickett v. United States, 223 F. Supp.695 (S.D. Cal. 1963).

19691


A motion to vacate may be granted where the prisoner wasmisinformed at his trial as to the consequences of taking the standto deny the charges against him.42 In one case it was held thatrequiring the defendant to stand for purposes of identification didnot violate the privilege.427 A district court on a motion has foundwithout a hearing that self-incrimination had not been shown.428

An early case stated that a confession could not be attacked onmotion to vacate.429 While it has been held that a confession ob-tained as a result of illegal detention cannot be attacked by mo-tion,43 0 a confession obtained by fear and duress may, under somecircumstances, be so attacked. 4

3' There is, however, contraryauthority.432 The contention that the defendant's confession wasnot voluntary cannot be raised on appeal from denial of a motionto vacate, where it was not raised in the district court and was fullyexplored at the trial of the case. 433 In one case, where the trialjudge had referred the question of voluntariness of a confession tothe jury without first making that determination himself, the pris-oner was entitled to a hearing in motion proceedings on the volun-tariness of the confession. 434

It has been held that a motion to vacate does not lie because

426. United States v. Poe, 352 F.2d 639 (D.C. Cir. 1965).427. Peoples v. United States, 365 F.2d 284 (10th Cir. 1966).428. Haili v. United States, 212 F. Supp. 656 (D. Hawaii 1962).429. United States v. Lowrey, 84 F. Supp. 804, 807 (W.D. Pa. 1949),

aff'd, 179 F.2d 964 (3d Cir.), cert. denied, 339 U.S. 969 (1950). But the courtconsidered it and found it admissible. See also Davis v. United States, 214F.2d 594 (7th Cir. 1954); Smith v. United States, 187 F.2d 192, 197 (D.C. Cir.1950), cert. denied, 341 U.S. 927 (1951); United States v. Brest, 23 F.R.D. 103,108 (W.D. Pa. 1958); Stegall v. United States, 153 F. Supp. 844, 847 (W.D.Ky. 1957); Yodock v. United States, 97 F. Supp. 307, 311 (M.D. Pa. 1951);United States v. Kranz, 86 F. Supp. 776 (D.N.J. 1949) (coerced confession).

430. Smith v. United States, 187 F.2d 192, 197 (D.C. Cir. 1950), cert.denied, 341 U.S. 927 (1951); United States v. Morin, 163 F. Supp. 941, 944(W.D. Pa. 1958); United States v. Hodges, 156 F. Supp. 313 (D.D.C. 1957),aff'd, 282 F.2d 859 (D.C. Cir. 1960); United States v. White, 153 F. Supp. 809,811 (D.D.C. 1957); United States v. Edwards, 152 F. Supp. 179, 184 (D.D.C.1957).

431. Thomas v. United States, 352 F.2d 701 (D.C. Cir. 1965); Haier v.United States, 334 F.2d 441 (10th Cir. 1964) (even after an 18-year delay);Oughton v. United States, 310 F.2d 803 (10th Cir. 1962); Overman v. UnitedStates, 281 F.2d 497, 498 (6th Cir. 1960) (citing Leyra v. Denno, 347 U.S. 556(1954), noted, 43 CALIF. L. REV. 114 (1955); 68 HARV. L. REV. 110 (1954); 53

MICH. L. REV. 468 (1955); 2 U.C.L.A. L. REV. 127 (1954) ); Kent v. UnitedStates, 272 F.2d 795, 798 (1st Cir. 1959) (dictum).

432. Williams v. United States, 197 F. Supp. 198, 199 (D. Ore. 1961).433. Lampe v. United States, 288 F.2d 881 (D.C. Cir. 1961), cert. denied,

368 U.S. 958 (1962).434. Proctor v. Anderson, 361 F.2d 557 (D.C. Cir. 1966) (one judge dis-

sented). The court cited Jackson v. Denno, 378 U.S. 368 (1964).

[Vol. 2

MOTION TO VACATE

hearsay evidence was introduced at the trial.4 5 A different result,however, may follow in extreme cases. For example, it has beenheld that a motion to vacate lies where the defendant's attorney,out of the defendant's hearing, stipulated that the defendant hadpreviously been convicted of a felony and waived proof thereof,without the defendant's knowledge or consent.43 6 The enhancedsentence was reduced.

An alleged error in the admission of an accomplice's testimonymay not be attacked by a motion. 437

Illegal wiretapping has been asserted as a ground for a motionand reviewed on appeal from denial of the motion.43 8

4. Rule 28: Expert Witnesses

It has been held that a motion to vacate does not lie because anexpert witness appointed by the court failed to notify the defend-ant before trial of his findings.43 9

5. Rule 29: Motion for Judgment of Acquittal

The question of the sufficiency of evidence cannot be raised onmotion to vacate. Accordingly, it has been held that failure to di-rect a judgment of acquittal under Rule 29 is not a ground for amotion to vacate.440

6. Rule 30: Instructions

Error in the instructions is not normally a proper ground forthe motion.441 In some cases, however, the instructions of the trial

435. Hunt v. United States, 237 F.2d 267 (4th Cir. 1956).436. Jackson v. United States, 221 F.2d 883 (D.C. Cir. 1955).437. Glouser v. United States, 296 F.2d 853, 857 (8th Cir. 1961).438. United States v. Campbell, 337 F.2d 396 (7th Cir. 1964), cert. de-

nied, 379 U.S. 983 (1965). See 4 ORFIELD 532 (1967).439. Lewis v. United States, 235 F.2d 580 (9th Cir.), cert. denied, 352

U.S. 897 (1956). See 4ORFIELD 641 (1967).440. Hanley v. United States, 222 F.2d 566 (D.C. Cir. 1955); United

States v. Edwards, 152 F. Supp. 179, 184 (D.D.C. 1957). See 4 ORFIELD 709(1967).

441. Johnston v. United States, 331 F.2d 997 (10th Cir. 1964); UnitedStates v. Lovely, 319 F.2d 673, 680 (4th Cir. 1963); United States v. Ramsey,297 F.2d 503 (7th Cir. 1962); Cambiano v. United States, 295 F.2d 13 (9thCir. 1961), cert. denied, 368 U.S. 399 (1962); Banks v. United States, 287F.2d 374 (7th Cir.), cert. denied, 366 U.S. 939 (1961); United States v.Stevens, 260 F.2d 549 (3d Cir. 1958); Adams v. United States, 222 F.2d 45,46 (D.C. Cir. 1955); United States v. Jonikas, 197 F.2d 675, 677, 680 (7th Cir.),cert. denied, 344 U.S. 877 (1952) (but the court of appeals reviewed theinstructions and found no error); Hastings v. United States, 184 F.2d 939(9th Cir. 1950); Rush v. United States, 225 F. Supp. 843 (E.D. La. 1964);

19691


court have been reviewed and found to be proper.442 Further thanthis, however, in a case where there were two issues involved at thetrial of the defendant, whether he had committed the acts charged,and whether, if he had he was then sane, an instruction to thejury after several hours of deliberation that the judge saw no rea-son why the jury should have any difficulty in arriving at a verdictbecause the issue was simple and a single one, the action of thetrial judge amounted to taking one issue from the jury, and a mo-tion to vacate was upheld.443

In one case it was held that a motion to vacate does not lie onthe ground of unauthorized communication with the jury duringits deliberations by the court's law clerk, where the clerk did nothimself reply to a question addressed to him by the jury, but in-stead delivered to the jury a written stipulation by counsel for bothsides that, where sentences run concurrently, the verdict wouldcover each individual count of the indictment. 444 On appeal theSixth Circuit has considered whether or not instructions werecoercive. 445 It has been said that even if alleged communicationsbetween the jury and the judge during the jury's deliberation areimproper, a motion to vacate does not lie on that ground.446 Attackshould be on direct appeal from the conviction. It has also beenruled that even if the error in instructions which led to reversal inthe case of one defendant would have led to a like result if the co-defendant had appealed from his conviction, a motion to vacate onbehalf of the co-defendant does not lie to raise the issue.447

7. Rule 31: Verdict

A verdict not responsive to the indictment may be attacked bymotion, and a new trial granted. 448 It should be noted, however,that a verdict will not be interpreted in light of the instructions ofthe court, but rather in light of the indictment. 449

West v. United States, 217 F. Supp. 391 (D.D.C. 1963); United States v. Ed-wards, 152 F. Supp. 179, 184 (D.D.C. 1957). See 5 ORFIELD 110 (1967).

442. Wapnick v. United States, 355 F.2d 136 (2d Cir. 1966); Glass v.United States, 328 F.2d 754, 756 (7th Cir. 1964); United States v. Cornett,142 F. Supp. 764, 767 (W.D. Ky. 1956), aff'd, 245 F.2d 118 (6th Cir. 1957).

443. Blunt v. United States, 244 F.2d 355, 367 (D.C. Cir. 1957).444. United States v. Brilliant, 172 F. Supp. 712 (E.D.N.Y. 1959).445. Hunt v. United States, 343 F.2d 84 (6th Cir. 1965) (The court found

the instructions to be proper.).446. Fennell v. United States, 313 F.2d 941 (10th Cir. 1963).447. West v. United States, 326 F.2d 633 (D.C. Cir. 1963).448. Shelton v. United States, 235 F.2d 951 (4th Cir. 1956). See 5

ORFIELD 337 (1967).449. Williams v. United States, 238 F.2d 215, 220 (5th Cir. 1956).

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MOTION TO VACATE

E. JUDGMENT

1. Rule 32: Sentence and Judgment

a. Allocutus. In 1957 the Fourth Circuit upheld an attackby motion on the ground of want of proper allocutus under Rule32(a).450 The motion has been held not to lie on the ground thatthe defendant was not given an opportunity to make a personalstatement on allocutus, 451 but a later case in the same jurisdictionupheld a motion asserting similar grounds.452 A motion does not liewhere it does not appear that the defendant would have addedanything to what his counsel said. 453

In Hill v. United States, 454 decided in 1962, the Supreme Courtheld that a failure of the trial judge to comply with the requirementof Rule 32 (a) of the Federal Rules of Criminal Procedure that heafford the defendant an opportunity to make a statement in hisown behalf cannot be attacked by motion to vacate in the absence ofaggravating circumstances.455 The Court specifically left open thequestion whether a motion would lie if aggravating circumstanceswere found, but in a companion case the Court held that the sever-ity of the sentence involved, the fact that the defendant had pleadedguilty, and the apparent hostility of the sentencing judge did notconstitute aggravating circumstances sufficient to allow attackby motion. 456 Later cases, however, have found sufficient aggra-vating circumstances to allow attack by motion where the de-fendant's attorney advised him that he would waive a lighter sen-tence if he pleaded guilty, and the defendant had been threatenedthat he would get the maximum sentence if he pleaded not guilty;45 7

where the prisoner alleged that if he had been given the oppor-tunity, he would have informed the court of several matters un-known to his lawyer which would have corrected false impressions

450. Parker v. United States, 248 F.2d 803 (4th Cir. 1957).451. Howard v. United States, 247 F.2d 537 (D.C. Cir. 1957).452. Jenkins v. United States, 249 F.2d 105 (D.C. Cir. 1957).453. United States v. Green, 24 F.R.D. 130 (D. Mass. 1959).454. 368 U.S. 424 (1962), noted, 62 COLUM. L. REV. 884 (1962); 76 HARV.

L. REV. 83 (1962); 48 IOWA L. REV. 172 (1962); 34 ROCKY MT. L. REV. 554(1962); 29 TENN. L. REV. 575 (1962); 39 U. DETROIT L.J. 599 (1962).

455. Hill v. United States, 368 U.S. 424 (1962). Four Justices dissentedon other grounds. The defendant did not appeal from his conviction.The case was followed in Lynott v. United States, 360 F.2d 586 (3d Cir.1966); Byrd v. United States, 345 F.2d 481 (10th Cir. 1965); Jakalski v.United States, 303 F.2d 661 (7th Cir. 1962); United States v. Bebik, 302 F.2d335 (4th Cir. 1962); Green v. United States, 201 F. Supp. 804 (D. Mass. 1962);United States v. Cox, 29 F.R.D. 475 (W.D. Mo. 1962); State v. Cerce, 46N.J. 387, 217 A.2d 319 (1966). See 5 OFIELD 189 (1967).

456. Machibroda v. United States, 368 U.S. 487 (1962).457. United States v. Taylor, 303 F.2d 165, 168 (4th Cir. 1962).

1969]


implanted in the court by the prosecutor; 458 and where the de-fendant made no statement in his behalf on allocutus in the beliefthat the prosecuting attorney had made favorable recommendationsas to sentence, when no such recommendations were made.4

19 On

the other hand, a trial judge's direction to the court reporter not toreport closing arguments of counsel is not an aggravating circum-stance sufficient to convert a denial of an opportunity for allocu-tion into error raisable by motion to vacate.460

It has been held that where the record at the time sentence wasimposed failed to disclose that the defendant had committed twoprior offenses, which were disclosed to the court by the UnitedStates Attorney nine days after sentencing, and the defendant hadno opportunity in open court to deny that he was identical withthe person previously convicted, a motion to vacate should begranted.461 But it has also been held that the motion does not lieif the defendant admits identity.46 2

b. Defects in sentence. A sentence in excess of the maximumauthorized by law may be corrected by motion to vacate. 463 How-ever, a motion does not lie to reduce a sentence when the sentenceis within the statutory limits. 464 In this connection it has beenheld that a motion attacking disparity of sentences between thedefendant and two co-defendants must make an allegation indi-cating some unreasonable basis for the disparity of sentences.465

While a motion does not lie to attack a general sentence on severalcounts,466 where sentencing on two consecutive sentences results indouble punishment for a single offense, a motion lies.46 7 Like-wise, where the defendant pleads guilty only as to some counts,and he is sentenced as to counts to which he did not plead guilty,the court on motion to vacate may reduce the sentences. 4 8 Inone case, where a sentence for escape was made to follow a sentencefor assault in escaping and the original sentence was for robbery,the sentence for escape was vacated, since it did not conform to the

458. Green v. United States, 313 F.2d 6, 9-10 (1st Cir.), petition forcert. dismissed, 372 U.S. 951 (1963).

459. Dillon v. United States, 218 F. Supp. 948, 952 (D. Ore. 1963).460. United States v. Bebik, 333 F.2d 736 (4th Cir. 1964).461. United States v. Baldwin, 128 F. Supp. 739 (S.D. Ohio 1953).462. Knight v. United States, 225 F.2d 55 (9th Cir.), cert. denied,

350 U.S. 890 (1955).463. United States v. Scarlata, 214 F.2d 807, 809 (3d Cir. 1954).464. Westbrook v. United States, 188 F.2d 452 (4th Cir. 1951); In re

Cohen, 217 F. Supp. 240 (E.D.N.Y. 1963).465. Simpson v. United States, 342 F.2d 643 (7th Cir. 1965).466. Benson v. United States, 332 F.2d 288, 292 n.10 (5th Cir. 1964).467. Mathis v. United States, 200 F.2d 697 (6th Cir. 1952).468. Campbell v. United States, 258 F.2d 160 (D.C. Cir. 1958).

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MOTION TO VACATE

statute which required the court in sentencing for escape to makeit begin from the expiration of the sentence under which the defend-ant was held at the time of escape.469 It has also been held thatwhere the defendant was serving a sentence in a state prison foran offense unrelated to that for which he was sentenced in federalcourt, and there was a failure to state in the federal sentencewhether it was to run concurrently with the state sentence, themotion to vacate does not lie because of failure to state the timewhen the federal sentence was to commence, since it was to runconsecutively to the state sentence.47 0

It is not ground for a motion that separate sentences are basedon a single offense when the sentences are concurrent.4 71 More-over, concurrent sentences are not open to attack when their totalis within the maximum penalty which may be imposed under anycount not challenged. 47 2 In one case it was held that motion tovacate and not habeas corpus was the proper remedy of a prisonerwho contended after serving a 20-year sentence for bank robberythat his continued confinement under a concurrent 25-year sentencefor assault committed during the bank robbery was illegal.47

3 Themotion proceeding has been allowed where a prisoner at the time ofimposition of a federal sentence was serving a state sentence, sinceimposition of the federal sentence was made to run concurrentlywith the state sentence. 47 4

The Eighth Circuit has held that where the prisoner had notpreviously questioned the validity of his sentence, a motion to va-cate could not be used to determine whether his sentence had ex-pired before the execution of a parole violator warrant.47 5

c. Judgment. Where the defendant has been convicted ofoffenses for which mandatory sentences had been fixed, inclusionin the judgment of provisions making the defendant eligible forparole within the discretion of the parole board were held not tobe mere surplusage, and therefore, the judgment was corrected toinclude such provisions on motion to vacate. 476

d. Presentence investigation. A motion to vacate does notlie because the defendant was sentenced without a presentence

469. United States v. Johnson, 110 F. Supp. 789 (D. Kan. 1953).470. United States v. Scalise, 86 F. Supp. 908 (E.D.N.Y. 1949).471. Waldon v. United States, 84 F. Supp. 449, 451 (E.D. Ill. 1949).472. United States v. Nickerson, 211 F.2d 909 (7th Cir. 1954); Greene v.

United States, 188 F.2d 571 (6th Cir. 1951).473. Gebhart v. Hunter, 89 F. Supp. 336 (D. Kan. 1950).474. United States v. Hough, 157 F. Supp. 771, 777 (S.D. Cal. 1957).475. Stinson v. United States, 342 F.2d 507 (8th Cir. 1965).476. Robinson v. United States, 313 F.2d 817 (7th Cir. 1963).

1969]


investigation and report,477 since such a report is discretionarywith the sentencing judge. Nor need the defendant be given anopportunity to controvert the presentence report.478 An allegederror in the report may not be attacked by motion. 479 The motiondoes not lie on the ground that the presentence report containsincorrect information. 48 0 The Third Circuit has held that a motiondoes not lie because the judge read the presentence report after aplea of guilty, where the defendant later withdrew his plea andpleaded not guilty and was convicted.481 It has also been heldthat the motion does not lie because the court in its presentenceinquiry considered evidence of the prisoner's prior dealings in nar-cotics.

482

e. Withdrawal of guilty plea. In some cases the defendanthas simultaneously moved to withdraw a guilty plea under Rule32(d) and made a motion to vacate under 28 U.S.C. section 2255.488A motion to vacate need not be treated as a motion under Rule32(d), even though the facts would warrant such a motion.4 8 4

However, the section 2255 motion has been so treated.48 5 One dis-trict court has held that such a motion must be treated as a motionmade under Rule 32 (d) .486

f. Probation. In general, matters properly determined on anapplication for probation may not be raised by motion to vacate.487

Thus, in one case where the record showed that the defendanthad not pleaded guilty to the second count of the indictment underwhich sentence was suspended and the defendant placed on pro-bation, it was said that his remedy was to file a motion to set asidethe probation and not a motion to vacate sentence. 48 8 Failure togive credit for time spent on probation when probation has beenrevoked has been raised on motion to vacate and sustained as a

477. United States v. Visconti, 261 F.2d 215, 217 (2d Cir. 1958). See alsoMcGann v. United States, 233 F. Supp. 419, 422 (D. Md. 1964).

478. Hoover v. United States, 268 F.2d 787, 790 (10th Cir. 1959).479. Shields v. United States, 237 F. Supp. 660, 664 (D. Minn. 1965).480. Rakes v. United States, 231 F. Supp. 812, 816 (W.D. Va. 1964).

See 5 ORFIELD 216 (1967).481. United States v. Kravitz, 303 F.2d 700 (3d Cir. 1962). See also

Smith v. United States, 340 F.2d 953 (5th Cir. 1965).482. Brantley v. United States, 200 F.2d 556 (5th Cir. 1952).483. Harris v. United States, 216 F.2d 953 (5th Cir. 1954); United States

v. Shailer, 202 F.2d 590 (2d Cir. 1953); United States v. Paglia, 190 F.2d 445,446 (2d Cir. 1951). See 5 ORFIELD 236 (1967).

484. Crow v. United States, 186 F.2d 704, 706 (9th Cir. 1950).485. Gilinsky v. United States, 335 F.2d 914, 917 (9th Cir. 1964); United

States v. Shailer, 202 F.2d 590 (2d Cir. 1953).486. United States v. McNair, 18 F.R.D. 417, 419 (D.D.C. 1955).487. United States v. Edelson, 89 F. Supp. 926 (M.D. Pa. 1950).488. Pulliam v. United States, 178 F.2d 777 (10th Cir. 1949).

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MOTION TO'VACATE

proper ground therefor.4 9

While it has been said that the motion procedure does not lieto attack revocation of probation 490 and that any error must beraised at the hearing on revocation of probation, the Eighth Circuithas reviewed revocation of probation in a motion proceeding.491

2. Rule 33: New Trial

Several cases have treated a motion to vacate as a substitutefor a motion for new trial.49 2 However, in one case the defendantwas allowed to file simultaneously a motion to vacate and analternative motion for new trial because of newly discovered evi-dence. 493 In this connection it should be noted that a motion tovacate cannot be substituted for a motion for new trial because ofnewly discovered evidence under Rule 33. Thus, it has been heldthat two years after final judgment a motion to vacate whichasserts newly discovered evidence will not lie.494 No jurisdictionalor constitutional question is presented.

3. Rule 34: Arrest of Judgment

A late motion in arrest of judgment alleging failure to chargean offense may be treated as a motion to vacate.495 However, adistrict court held in 1959 that such a motion will not be treated asa motion to vacate where the defendant is out on bond and there-fore not in custody.490

489. United States v. Guzzi, 177 F. Supp. 785 (E.D. Pa. 1959).490. United States v. Lowe, 173 F.2d 346 (2d Cir.), cert. denied, 337

U.S. 944 (1949).491. Kaplan v. United States, 234 F.2d 345 (8th Cir. 1956).492. Williams v. United States, 290 F.2d 217 (5th Cir. 1961); Rubenstein

v. United States, 227 F.2d 638, 643 (10th Cir. 1955), cert. denied, 350 U.S. 993(1956); Brant v. United States, 210 F.2d 470 (5th Cir. 1954); United States v.Derosier, 141 F. Supp. 397, 401 (W.D. Pa. 1956).

493. United States v. De Marie, 261 F.2d 477, 478 (7th Cir. 1958).494. United States v. Kaplan, 101 F. Supp. 7, 11, 13 (S.D.N.Y. 1951),

noted, 36 MINN. L. REV. 533 (1952). See also United States v. Swope, 219F.2d 538 (5th Cir. 1955); Donnelly, Unconvicting the Innocent, 6 VAND. L.REV. 20 (1952). But see United States v. Puff, 122 F. Supp. 775, 778(S.D.N.Y. 1954). A.B.A., REPORT ON POST-CONVICTION REMEDIES 32-33 (1967)would allow relief. The Report points out that the Advisory Committeeof the Federal Courts failed to deal with the problem. Id. at 46-47.

495. Finn v. United States, 256 F.2d 304, 306 (4th Cir. 1958); Marteney v.United States, 216 F.2d 760, 762 (10th Cir. 1954). See 5 ORFIELD 435 (1967).

496. United States v. McDonough Co., 180 F. Supp. 511, 515 (S.D. Ohio1959). But cf. Orfield, Motion to Vacate Under 28 U.S.C. Section 2255:Part One, 2 CREIGHTON L. REV. 5, 14-19 (1968).

19691


4. Rule 35: Correction or Reduction of Sentence

The section 2255 procedure does not lie to reduce a legal sen-tence.497 In one case in the Sixth Circuit, a motion to vacate wastreated as a motion made under Rule 35, since under Rule 35 cus-tody is not a prerequisite to obtaining relief.498 It should be noted,however, that if the error is in the conviction rather than in thesentence, a motion to vacate may not be so treated.49 9 The SecondCircuit has allowed a motion to vacate and a motion under Rule 35to be filed simultaneously.50 0

5. Rule 36: Clerical Mistakes

A motion to vacate is a collateral attack on a judgment as itstands, and until the judgment is corrected, if correction is requiredto make the judgment conform to the facts, the court of appealsmust accept the judgment as it reads.5 01 Correction may be madethrough application of Rule 36 of the Federal Rules of CriminalProcedure.

F. APPEAL

1. Rule 37: Taking Appeal 0 2

Because the motion procedure is not a substitute for direct ap-peal, where a defendant filed a timely notice of appeal from a 1953conviction, but the appeal was dismissed because of the defendant'sfailure to perfect it, a motion to vacate filed 12 years later would notbe construed as a direct appeal from conviction so as to permit re-view of trial errors.5 0 3 In one case the Court of Appeals for the Dis-trict of Columbia remanded a case to the district court to determinewhether there was an intentional relinquishment of the defendant'sright to appeal under Rule 37 of the Federal Rules of CriminalProcedure by considered choice on his part, and, if not, whether

497. Richards v. United States, 212 F.2d 453 (D.C. Cir. 1954), cert. de-nied, 358 U.S. 886 (1958). See 5 ORFIELD 502 (1967).

498. Duggins v. United States, 240 F.2d 479, 484 (6th Cir. 1957). Seealso Killebrew v. United States, 275 F.2d 308 (5th Cir.), cert. denied, 364U.S. 841 (1960); Baker v. United States, 271 F.2d 190, 192 (8th Cir. 1959);Hixon v. United States, 268 F.2d 667, 668 (10th Cir. 1959).

499. Hill v. United States, 368 U.S. 424, 430 (1962); Hoffman v. UnitedStates, 244 F.2d 378, 381 (9th Cir. 1957).

500. United States v. Thompson, 261 F.2d 809 (2d Cir. 1958).501. Chapman v. United States, 247 F.2d 879, 881 (6th Cir. 1957), cert.

denied, 356 U.S. 945 (1958). See 5 ORFIELD 528 (1967).502. Rule 37 was abrogated December 4, 1967, effective July 1, 1968.503. Robinson v. United States, 335 F.2d 975 (D.C. Cir. 1964). One

judge dissented. See 5 ORFIELD 569-70 (1967).

[Vol. 2

MOTION TO VACATE

the defendant suffered any prejudice in not securing review byappeal.

504

2. Rule 38: Stay of Execution and Relief Pending Review

Rule 38 of the Federal Rules of Criminal Procedure authorizingstay of imprisonment when appeal has been taken has no appli-cation to appeal from an order denying a motion to vacate sen-tence.505 Note, however, that a member of the Supreme Courtsitting as a circuit judge has the power to stay a death sentenceand to entertain a motion to correct the sentence upon a showingthat substantial legal issues cast doubt upon the power of the dis-trict court to impose the death penalty.506 But the Supreme Courtmay review the stay of execution and may vacate the stay.

G. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

1. Rule 40: Commitment to Another District; Removal

The general rule appears to be that removal proceedings maynot be attacked by motion to vacate. 50 7

2. Rule 41: Search and Seizure

It was held in 1949 that a motion to vacate does not lie becausethe court denied the defendant's motion to suppress evidence ob-tained by an allegedly illegal search.508 It has also been held that

504. Dodd v. United States, 321 F.2d 240 (9th Cir. 1963).505. Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959), cert. de-

nied, 361 U.S. 938 (1960); Banks v. United States, 218 F.2d 640 (9th Cir.1954). See 5 ORFIELD 585 (1967).

506. Rosenberg v. United States, 346 U.S. 273, 285, 288, 294 (1953),noted, 54 COLUM. L. REV. 219, 241-60 (1954); 48 Nw. U. L. REV. 751 (1954);32 TEX. L. REV. 459 (1954).

507. Morton v. United States, 351 F.2d 457 (10th Cir. 1965).508. Kinney v. United States, 177 F.2d 895, 897 (10th Cir. 1949), cert.

denied, 339 U.S. 922 (1950). See also Thornton v. United States, 368 F.2d 822(D.C. Cir. 1966); Cox v. United States, 351 F.2d 280 (8th Cir. 1965); Kap-salis v. United States, 345 F.2d 392 (7th Cir. 1965); Springer v. UnitedStates, 340 F.2d 950 (8th Cir. 1965); Gendron v. United States, 340 F.2d 601(8th Cir. 1965); Sinks v. United States, 318 F.2d 436 (7th Cir.), cert. denied,375 U.S. 946 (1963); Peters v. United States, 312 F.2d 481 (8th Cir. 1963);Warren v. United States, 311 F.2d 673 (8th Cir. 1963); Thomas v. UnitedStates, 308 F.2d 369 (7th Cir. 1962); Pearson v. United States, 305 F.2d 34,36 (7th Cir. 1962); Alexander v. United States, 290 F.2d 252 (5th Cir. 1961);United States v. Jenkins, 281 F.2d 193 (3d Cir. 1960); Way v. United States,276 F.2d 912 (10th Cir. 1960); Eberhart v. United States, 262 F.2d 421 (9thCir. 1958); Plummer v. United States, 260 F.2d 729, 730 (D.C. Cir. 1958);Wilkins v. United States, 258 F.2d 416 (D.C. Cir. 1958) (one judge dis-sented); Griffin v. United States, 258 F.2d 411 (D.C. Cir.), cert. denied,

'1969]


a plea of guilty cannot be attacked on this ground.50 9 One courthas stated: "It is sufficient to say that if the rule were otherwise,a constitutional issue could be found by almost any defendantseeking to attack a judgment of conviction by the use of Section2255." 510 The case of Mapp v. Ohio51' has been said not to changethis result.51 2 It has been suggested, however, that if the evidencewas obtained by an unlawful search of which the court had noknowledge because the defendant pleaded guilty in ignorance ofhis constitutional rights, the judgment may be vacated. 513 More-over, the Seventh Circuit has reviewed the issue in motion proceed-ings where the prisoner acted as his own counsel both in the dis-trict court and court of appeals. 51 4

Several recent cases have indicated that the issue of illegallyseized evidence has a constitutional basis, and that therefore a mo-tion to vacate will lie.51 5 However, a. prisoner by acquiescence at

357 U.S. 922 (1958); Beasley v. United States, 257 F.2d 414 (6th Cir. 1958);Edwards v. United States, 256 F.2d 707, 708 (D.C. Cir. 1958); Martin v.United States, 248 F.2d 651, 652 (D.C. Cir. 1957); White v. United States,235 F.2d 221 (D.C. Cir. 1956); Davis v. United States, 214 F.2d 594 (7th Cir.1954); Donovan v. United States, 205 F.2d 557 (10th Cir. 1953); Barber v.United States, 197 F.2d 815 (10th Cir.), cert. denied, 344 U.S. 857 (1952);United States v. Walker, 197 F.2d 287, 288 (2d Cir.), cert. denied, 344 U.S.877 (1952); Riggins v. United States, 255 F. Supp. 777, 783 (N.D. Tex. 1966);Shields v. United States, 237 F. Supp. 660, 661 (D. Minn. 1965); UnitedStates v. DeFillo, 166 F. Supp. 627 (S.D.N.Y. 1958); United States v. Ed-wards, 152 F. Supp. 179, 184, 185 (D.D.C. 1957); United States v. Lett, 143F. Supp. 594 (S.D. Ohio 1955), aff'd mem., 236 F.2d 417 (6th Cir. 1956);United States v. Bush, 135 F. Supp. 3 (S.D. W. Va. 1955); Simeone v.Humphrey, 114 F. Supp. 573 (M.D. Pa. 1953); United States v. Pugh, 106F. Supp. 209, 210 (D. Guam 1952). This view is supported by Amsterdam,Search, Seizure, and Section 2255: A Comment, 112 U. PA. L. REV. 378(1964).

509. Benitez Suarez v. United States, 328 F.2d 473 (1st Cir. 1964);United States v. Zavada, 291 F.2d 189 (6th Cir. 1961); Alexander v. UnitedStates, 290 F.2d "252 (5th Cir. 1961) (but see concurring opinion of Brown,J., 290 F.2d at 255); United States v. Salzano, 241 F.2d 849 (2d Cir. 1957);Warren v. United States, 232 F.2d 629 (5th Cir. 1956); Gonzalez v. UnitedStates, 210 F.2d 825 (1st Cir. 1954); Brown v. United States, 239 F. Supp. 41(E.D. La. 1965); McKenley v. United States, 235 F. Supp. 255 (E.D. La. 1964);Lewis v. United States, 228 F. Supp. 958 (S.D.N.Y. 1964); United States v.Angelico, 145 F. Supp. 292 (S.D.N.Y. 1956).

510. United States v. Scales, 249 F.2d 368, 370 (7th Cir. 1957).511. 367 U.S. 643 (196.1).512. Sinks v. United States, 318 F.2d 436 (7th Cir.), cert. denied, 375

U.S. 946 (1963).513. United States v. Walsh, 89 F. Supp. 409 (D. La. 1949).514. United States v. Haywood, 208 F.2d 156, 158 (7th Cir. 1953).515. Miller v. United States, 356 F.2d 63, 68 (5th Cir.), cert. denied,

384 U.S. 912 (1966); United States v. Sutton, 321 F.2d 221, 222 (4th Cir.1963); Gaitan v. United States, 317 F.2d 494 (10th Cir. 1963); Wion v. Will-ingham, 252 F. Supp. 306 (D. Colo. 1965); United States v. White, 237 F.

[Vol. 2

MOTION TO VACATE

the trial and by failure to appeal his conviction may waive his rightto move to vacate.5 16

A change in a rule of evidence after conviction is not groundfor a motion to vacate. Thus, where the defendant had been con-victed upon evidence obtained through a wrongful search andseizure by state officers acting independently of the Federal Gov-ernment in a federal prosecution, and such evidence was subse-quently held not to be admissible in the federal courts, since thedefendant had already been convicted at the time of the decisionannouncing the new rule, he could not have relief by motion tovacate.517 Because Elkins v. United States,5 18 changing the ruleas to evidence illegally obtained by state police is not to be appliedretroactively,5 9 the Tenth Circuit has held that the issue whetherevidence obtained by state officers during a search which, if con-ducted by federal officers, would have violated the defendant'srights under the Fourth Amendment is an error in the admission ofevidence not raisable by motion.520

3. Rule 42: Criminal Contempt

The Tenth Circuit has allowed attack upon the validity of crim-inal contempt procedure to be made by a motion to vacate.521

H. GENERAL PROVISIONS

1. Rule 43: Presence of the Defendant

Lack of presence of the defendant during part of a trial hasbeen considered in motion proceedings.5 22 Lack of presence at theimpaneling of the jury may be attacked by motion, since the recordshould affirmatively show presence in felony cases, 523 Failure to

Supp. 644 (E.D. Va. 1964); Gendron v. United States, 227 F. Supp. 182(E.D. Mo. 1964); United States v. Winstead, 226 F. Supp. 1010, 1011 (N.D.Cal. 1964). See Kaufman v. United States, 89 S.Ct. 1068 (1969), holding thata claim of unconstitutional search and seizure is cognizable in a § 2255 pro-ceeding. See also 5 ORFIELD 750 (1967).

516. United States v. Winstead, 226 F. Supp. 1010 (N.D. Cal. 1964).517. Gaitan v. United States, 295 F.2d 277 (10th Cir. 1961), cert. denied,

369 U.S. 857 (1962).518. 364 U.S. 206 (1960).519. Reynolds v. United States, 324 F.2d 371 (5th Cir. 1963).520. McLester v. United States, 306 F.2d 880 (10th Cir. 1962). See

also United States v. Reynolds, 213 F. Supp. 917 (N.D. Fla. 1963).521. Yates v. United States, 316 F.2d 718 (10th Cir. 1963). See 5 ORFIELD

792-93 (1967).522. Parker v. United States, 184 F.2d 488 (4th Cir. 1950) (but a waiver

was found).523. United States v. Brest, 23 F.R.D. 103, 106 (W.D. Pa. 1958). See

6 OPaIELD 49 (1967).

,1969]


raise the issue on appeal from the conviction, however, casts doubtupon the defendant's credibility. 524

The motion to vacate does not lie on the ground that at thetrial the defendant was excluded from the presence of the courtand counsel when argument was being heard as to the admission oftestimony and when the court was examining the circumstances ofthe confession of a confederate before counsel in chambers.5 25

Moreover, absence at a proceeding to obtain a continuance involv-ing only legal issues is not ground for a motion. 26 Nor is presenceof the defendant necessary at a proceeding in chambers to impeacha Government witness, and therefore a motion to vacate will notlie. 27 Where the defendant was deliberately absent from a juryview during the trial because of a decision of his retained counsel, amotion to vacate does not lie.52 8 Moreover, a jury view has beensaid not to be a stage of the trial.529

However, the motion procedure is appropriate when the de-fendant has not been allowed to be present at the final sentencingunder 18 U.S.C. section 4208(b), 530 and when the defendant hasnot been allowed to be present when an order of commitment iscorrected.53'

2. Rule 44: Right to an Assignment of Counsel

Denial of the right to counsel has been a frequent ground forthe motion to vacate. 532 The motion will lie where the court has

524. Nemirka v. United States, 234 F. Supp. 463 (S.D.N.Y. 1964).525. United States v. Gore, 130 F. Supp. 117 (W.D. Ky. 1955). See also

Stein v. United States, 313 F.2d 518, 522 (9th Cir. 1962).526. Burley v. United States, 295 F.2d 317 (10th Cir. 1961).527. Cox v. United States, 309 F.2d 614, 616 (8th Cir. 1962).528. Kendrick v. United States, 252 F.2d 860 (D.C. Cir. 1958).529. Burke v. United States, 247 F. Supp. 418 (D. Mass. 1965).530. United States v. Behrens, 375 U.S. 162 (1963); United States v.

Johnson, 315 F.2d 714, 717 (2d Cir. 1963).531. Gilliam v. United States, 269 F.2d 770 (D.C. Cir. 1959).532. Laughner v. United States, 360 F.2d 159 (5th Cir. 1966); Reed v.

United States, 291 F.2d 856, 859 (4th Cir. 1961); Frand v. United States,289 F.2d 693 (10th Cir. 1961); Vellky v. United States, 279 F.2d 697 (6thCir. 1960); Smith v. United States, 259 F.2d 125 (9th Cir. 1958); Smith v.United States, 223 F.2d 750 (5th Cir. 1955); West v. United States, 221 F.2d308 (5th Cir. 1955); Mays v. United States, 216 F.2d 186 (10th Cir. 1954);Harvey v. United States, 215 F.2d 330 (D.C. Cir. 1954), noted, 1 HOWARDL.J. 123 (1955), 53 MicH. L. REV. 885 (1955), 26 TENN. L. REV. 212 (1959);McKinney v. United States, 208 F.2d 844 (D.C. Cir. 1953); Gannon v. UnitedStates, 208 F.2d 772 (6th Cir. 1953); Sanders v. United States, 205 F.2d 399(5th Cir. 1953); United States v. Wantland, 199 F.2d 237 (7th Cir. 1952);Wheatley v. United States, 198 F.2d 325 (10th Cir. 1952); Hallowell v.United States, 197 F.2d 926 (5th Cir. 1952); Mason v. United States, 193F.2d 23 (D.C. Cir. 1951); United States v. Wilson, 133 F. Supp. 664 (E.D.

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MOTION TO VACATE

failed to advise the defendant of his right to assistance of counsel.5 8

A motion to vacate will not lie on the ground of incompetencyof counsel unless the representation by counsel is such as to makethe trial a farce and a mockery of justice. 53 4 The foregoing test,however, has been criticized as inadequate. 535 It has been heldthat the motion does not lie for incompetency of retained counsel, 3 6

but the motion may be available in extreme cases.537 Furthermore,the Seventh Circuit has held that where the defendant has twoattorneys, one of whom is capable, the fact that the other has beenintimidated by the prosecution and has been derelict in his dutythroughout the trial is not ground for the motion.3 s Similarly,where the defendant had one competent attorney, the Seventh Cir-cuit has held that a motion to vacate will not lie on the ground thatthe court did not advise the defendant of his statutory right to twocounsels in a capital case.5 39

The Sixth Circuit has upheld the use of the motion to vacatewhere the prisoner alleged in an affidavit that he had requested thathis court-appointed counsel call nine witnesses who could havetestified that he could not have committed the crime because he wasin their presence, but that counsel refused to call them becausetheir testimony might involve parties unknown to him and thetestimony might antagonize the judge.5 40 Likewise, where counselfor the defendant induced the defendant not to testify because hethought that the prosecution could use inadmissible statements to

La. 1955); United States v. McKinney, 122 F. Supp. 500 (D.D.C. 1954);Allen v. United States, 102 F. Supp. 866 (N.D. Ill. 1952). See 6 OaRIEw146-47 (1967).

533. Taylor v. United States, 193 F.2d 411 (10th Cir. 1952); Howard v.United States, 186 F.2d 778 (6th Cir. 1951); Cherrie v. United States, 179F.2d 94 (10th Cir. 1949); Snell v. United States, 174 F.2d 580 (10th Cir. 1949).

534. Crump v. United States, 329 F.2d 620, 623 (5th Cir. 1964); Frandv. United States, 301 F.2d 102 (10th Cir. 1962); Washington v. UnitedStates, 297 F.2d 342 (9th Cir. 1961); United States v. Pisciotta, 199 F.2d 603,607 (2d Cir. 1952); United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949),cert. denied, 338 U.S. 950 (1950); United States v. Butler, 167 F. Supp. 102,106 (E.D. Va. 1957); Hardy v. United States, 159 F. Supp. 208, 212 (S.D.N.Y.1957), alf'd, 252 F.2d 780 (2d Cir.), cert. denied, 356 U.S. 944 (1958); UnitedStates v. Meyers, 139 F. Supp. 724, 727 (D. Alas. 1956).

535. Mitchell v. United States, 259 F.2d 787, 794 (D.C. Cir.) (dissentingopinion), cert. denied, 358 U.S. 850 (1958).

536. Hamilton v. Wilkinson, 271 F.2d 278 (5th Cir. 1959); Malone v.United States, 257 F.2d 177 (6th Cir. 1958); Simeone v. Humphrey, 114 F.Supp. 573 (M.D. Pa. 1953).

537. Davis v. United States, 214 F.2d 594 (7th Cir. 1954).538. Pelley v. United States, 214 F.2d 597, 600 (7th Cir. 1954), cert.

denied, 348 U.S. 915 (1955). One judge dissented.539. Barkan v. United States, 305 F.2d 774, 777 (7th Cir. 1962).540. Lauer v. United States, 325 F.2d 990 (6th Cir. 1964).

1969]


impeach the defendant if he took the stand to deny all elements ofthe crime charged, though in fact such statements could not havebeen used for impeachment, a motion to vacate was granted.5 41 It

has been said, however, that, "The courts have shown little sym-pathy with attacks upon the competency of counsel, made as a lastresort in motions under 28 U.S.C. § 2255.' 5 4 2

While there has been some uncertainty,543 it has been held that aclaim that the defendant was denied due process of law by the ac-tion of the trial court in forcing court-appointed counsel on the de-fendant when he had counsel of his own choosing is a proper basisfor a motion to vacate.54 4 Where the defendant has deliberatelyproceeded without counsel, he has waived his right to counsel andthe motion to vacate will not lie.5 4 5 Nor will the motion lie be-cause the trial judge has refused to allow the defendant to sub-stitute a privately employed attorney for a court-appointed attor-ney after the trial is in progress. 546 However, a motion to vacatehas been granted where the defendant discharged his counsel af-ter the opening statement of the Government and the court denieda continuance so that other counsel could be obtained. 47 But wherea nonresident attorney's privilege to try the case was cancelled forcause, a motion will not lie.548

The defendant's flat statement that he did not want counseldoes not excuse the court from further inquiry into his competencyto waive the right to counsel and does not warrant immediateacceptance of a guilty plea.549

Where the ground asserted for the motion is denial of the rightto counsel by reason of conflict of interest, a real antagonism ofinterests must be shown. 550 Thus, a motion to vacate was grantedwhen the defendant was represented at the trial by court-appointedcounsel who had represented an informer who was a Governmentwitness. 551 Similarly, the motion lies if counsel for the defendant

541. Poe v. United States, 233 F. Supp. 173 (D.D.C. 1964).542. Green v. United States, 256 F.2d 483, 485 (1st Cir. 1958).543. Juelich v. United States, 342 F.2d 29, 32 (5th Cir. 1965).544. Doyle v. United States, 336 F.2d 640 (9th Cir. 1964); Hayes v.

United States, 323 F.2d 954 (5th Cir. 1963). See Note, 49 MINN. L. Rsv.1133 (1965).

545. Arellanes v. United States, 353 F.2d 270 (9th Cir. 1965), aff'd,238 F. Supp. 546 (N.D. Cal. 1964).

546. Brinegar v. United States, 290 F.2d 656 (6th Cir. 1961).547. Arellanes v. United States, 326 F.2d 560 (9th Cir. 1964).548. United States v. Madsen, 148 F. Supp. 625, 632 (D. Alas. 1957).549. Day v. United States, 357 F.2d 907 (7th Cir. 1966).550. Gardiner v. United States, 341 F.2d 896 (5th Cir. 1965); Vandersee

v. United States, 321 F.2d 57, 60 (3d Cir. 1963).551. Taylor v. United States, 226 F.2d 337 (D.C. Cir. 1955).

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MOTION TO VACATE

represents the antagonistic interests of a police officer.552

Failure to allow counsel sufficient time to prepare a defense isa ground for motion,553 but the issue may not be raised on motion tovacate unless the time is so short as to deny due process of law.55 4

In 1966 it was held that the motion does not lie because theprisoner was not represented by counsel or informed of his rightto counsel at the time the Juvenile Court of the District of Columbiawaived jurisdiction over him.555

Where a motion is sought on the ground that the defendanthas been denied counsel at police interrogation, the motion does notlie where no substantial right of the defendant has been in-fringed.556 Thus, a motion was denied when the prisoner wasadvised by F.B.I. agents of his right to counsel and to remainsilent, even though he was asked if he had participated in a bankrobbery.

5 7

A motion does not lie for want of representation by counselat the preliminary examination, when the defendant has not re-quested counsel and has waived the hearing.558 Similarly, wherea motion was premised upon a claim of prejudice from lack of coun-sel at a preliminary examination at which the defendant had madea voluntary statement not elicited by questions of Governmentofficials, the motion was denied.559

Where defendants were brought into open court for the solepurpose of affording them an opportunity to challenge the grandjury, either as to the array or as to individuals, they were held notto have made an "appearance" before the grand jury' in sessionso as to be entitled to representation by counsel. 560

A motion to vacate will lie because the defendant entered a pleaof guilty without counsel. 561 However, ineffective assistance ofcounsel is immaterial except perhaps as to voluntariness and under-

552. Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962).553. United States v. Vasilick, 206 F. Supp. 195, 199 (M.D. Pa. 1962).554. Baldwin v. United States, 260 F.2d 117 (4th Cir. 1958). But cf.

United States v. Yodock, 224 F. Supp. 877 (M.D. Pa. 1963).555. Mordecai v. United States, 252 F. Supp. 694, 702 (D.D.C. 1966).556. Moser v. United States, 363 F.2d 834 (6th Cir. 1966).557. Beavers v. United States, 351 F.2d 507 (9th Cir. 1965).558. Wallis v. United States, 242 F. Supp. 506 (E.D. Mo. 1965).559. Nance v. United States, 359 F.2d 273 (D.C. Cir. 1966).560. Hopkins v. United States, 344 F.2d 229, 233 (8th Cir. 1965). The

defendants claimed as to retained counsel, not appointed counsel.561. Poole v. United States, 250 F.2d 396, 400 (D.C. Cir. 1957). There

is a right to counsel when a guilty plea is made. Reed v. United States,354 F.2d 227 (5th Cir. 1965).

.1969]


standing.56 2 It is desirable and avoids later difficulties if the de-fendant is told of his right to counsel and the record shows this.,6,A motion has been granted where the court permitted a prisoner toplead guilty without appointing an attorney, and the prisoner hadrecently escaped from a mental institution.56 4

The more severe punishment made necessary by a prior con-viction does not require that an offer of counsel be repeated aftera prior conviction has been called to the attention of the court. 65

However, denial of counsel at the time of an increase in sentence isa proper ground for motion to vacate.566 Erroneous advice by de-fense counsel as to sentence does not support an attack by motion,unless it amounts to such ineffective assistance of counsel as toshock the conscience of the court and make the proceedings afarce.

56 7

There is no right to counsel at a hearing on revocation of pro-bation.

5 6 8

The motion to vacate has been held to lie where the defendantwas not advised of his right to counsel during the 10-day periodwithin which final proceedings in the district court might be takenby him to assure him of his right to appeal.569 While an earlierappeal has been reinstated where counsel improperly failed to per-fect an appeal from conviction, 570 failure to make an appeal fromthe original conviction does not show inadequate representation ofcounsel where there was no plain reversible error.571 There is nodenial of the constitutional right to counsel where the defendant'scourt-appointed counsel does not appeal from the defendant's con-viction because of his opinion that no ground for appeal exists. 572

562. Edwards v. United States, 256 F.2d 707, 709 (D.C. Cir. 1958). Onejudge dissented.

563. Miller v. United States, 261 F.2d 546 (4th Cir. 1958).564. Hyatt v. United States, 223 F. Supp. 594 (D. Colo. 1963).565. Davis v. United States, 230 F.2d 869 (5th Cir. 1956).566. United States ex rel. Stidham v. Swope, 96 F. Supp. 773 (N.D.

Cal. 1951).567. United States v. Horton, 334 F.2d 153, 155 (2d Cir. 1964); Smith

v. United States, 324 F.2d 436, 439 (D.C. Cir. 1963).568. Brown v. Warden, 351 F.2d 564, 567 (7th Cir. 1965). But see

Ashworth v. United States, 391 F.2d 245 (6th Cir. 1968).569. Boruff v. United States, 310 F.2d 918 (5th Cir. 1962). One judge

dissented. See also Hannigan v. United States, 341 F.2d 587 (10th Cir. 1965).570. Starke v. United States, 338 F.2d 648 (4th Cir. 1964).571. Mitchell v. United States, 254 F.2d 954 (D.C. Cir. 1958); United

States v. Peabody, 173 F. Supp. 413, 415 (W.D. Wash. 1958).572. Lewis v. United States, 294 F.2d 209 (D.C. Cir.), cert. denied, 368

U.S. 949 (1961). See also Watkins v. United States, 356 F.2d 472 (9th Cir.1966); Berube v. United States, 355 F.2d 543 (5th Cir. 1966); Wilson v.United States, 338 F.2d 54 (9th Cir. 1964); Ramsey v. United States, 223

[Vol. 2

MOTION TO VACATE

A prisoner is not entitled to have his sentence vacated or counselappointed to hold a hearing to determine whether failure to appealresulted from deception or neglect of counsel, in the absence of asuggestion that appeal from the conviction was not frivolous orthat prejudice resulted to the defendant. 573 The defendant maywaive his right to appeal by failing to request his attorney to appealafter being advised of his right to appeal.574 Even if the defend-ant has instructed his attorney to appeal and his attorney neglectsto do so, a motion does not lie where no action has been taken bythe court depriving the defendant of his right to appeal. Court-appointed counsel has a duty to inform the defendant of his rightto appeal from his conviction, and the defendant is entitled to reliefon a motion to vacate on the ground that his right to appeal wasfrustrated when counsel failed to advise him of his right to file anotice of appeal in forma pauperis, advising him instead that itwould cost $500 to file and perfect an appeal.5 15

2. Rule 46: Release on Bail

Denial of bail cannot be raised by motion to vacate. 576

3. Rule 48: Dismissal

The motion procedure has been used to attack the stage atwhich a nolle prosequi or dismissal was filed.577

4. Rule 50: Calendars

Refusal to grant a continuance is not a ground for motion.578

It has been said that violation of the right to a speedy trialshould be raised on appeal from the conviction, and not by motionproceedings.579 However, several cases have allowed the question

F. Supp. 605 (E.D. Tenn. 1963). Cf. Dodd v. United States, 321 F.2d 240(9th Cir. 1963).

573. Shipp v. United States, 245 F. Supp. 706 (E.D.N.C. 1965), citingmany cases.

574. Jones v. United States, 247 F. Supp. 759 (W.D. Okla. 1965).575. Lyles v. United States, 346 F.2d 789 (5th Cir. 1965). See also

Camp v. United States, 352 F.2d 800 (5th Cir. 1965).576. United States v. Maher, 89 F. Supp. 289, 294 (D. Me. 1950). But on

the facts the court found that there was no right to bail.577. United States v. Dorsch, 156 F. Supp. 61 (W.D. Pa. 1957).578. Dauer v. United States, 204 F.2d 141 (10th Cir.), cert. denied, 346

U.S. 889 (1953); Arndt v. United States, 256 F. Supp. 822 (E.D. Wis. 1966);United States v. Greco, 186 F. Supp. 5, 7 (M.D. Pa. 1960). See 6 ORFIELD415 (1967).

579. United States v. Robinson, 143 F. Supp. 286, 292 (W.D. Ky. 1956).

1969]


to be raised by motion proceeding.5 80 Nevertheless, where theissue has not been raised prior to trial, at trial, or on appeal, themotion will not lie.58 1 Thus, it has been held that a claim of delaybetween the time of discovery of the offense and the arrest of thedefendant must be made at the latest at the time of the trial, andthat such a claim cannot be raised for the first time on motion tovacate.

58 2

5. Rule 52: Harmless and Plain Error

Rule 52(b), dealing with plain error, does not apply to a mo-tion to vacate.5 8

3 Thus, it has been held that a motion does not liebecause certain jurors heard prejudicial remarks of the judge be-fore the trial, where the defendant failed to raise the question bymotion for new trial.58 4

XIX. GROUNDS OTHER THAN THOSE ARISING UNDER THE

FEDERAL RULES OF CRIMINAL PROCEDURE

A. OCCURRENCES AT TRIAL

That the defendant and a co-defendant were manacled to-gether in the presence of the jury is not ground for a motion.5 85

The question whether a conference by trial counsel at thebench must be transcribed by a reporter cannot be raised by mo-tion to vacate.586

It is within the sound discretion of the trial judge whether re-quested testimony of a Government witness should be read backto the jury after submission of the case. The motion to vacate doesnot lie because the request was granted. 587

Comments by the judge in the presence of jurors, waiting in thecourtroom to be drawn and qualified at trial, that the only way inwhich court-appointed counsel would represent the defendant

580. Waugaman v. United States, 331 F.2d 189 (5th Cir. 1964); UnitedStates v. Dennis, 242 F. Supp. 166 (S.D. Ind. 1964). See also United Statesv. Brest, 266 F.2d 879, 880 (3d Cir. 1959), cert. denied, 362 U.S. 912 (1960);United States v. Lindsey, 178 F. Supp. 598 (D.D.C. 1959); United States v.Brest, 23 F.R.D. 103, 107 (W.D. Pa. 1958). See 6 ORFIELD 370 (1967).

581. Douglas v. United States, 240 F. Supp. 381 (S.D.N.Y. 1965).582. D'Ercole v. United States, 361 F.2d 211 (2d Cir. 1966).583. Eisner v. United States, 351 F.2d 55, 57 (6th Cir. 1965).584. Smith v. United States, 265 F.2d 14, 16 (5th Cir.), cert. denied,

360 U.S. 910 (1959). One judge dissented. See 6 ORFIELD 525 (1967).585. United States v. Greco, 186 F. Supp. 5, 7 (M.D. Pa. 1960). See 3

ORnELD 665 (1966).586. Casados v. United States, 354 F.2d 688 (5th Cir. 1966).587. Tyler v. United States, 361 F.2d 862 (10th Cir. 1966).

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MOTION TO VACATE

would be in an honorable way, and if the defendant wanted coun-sel to represent him in a dishonorable way, the court was sure theattorney would refuse, and that court-appointed counsel knew moreabout trying a law suit than the defendant, even though the de-fendant may have had some experience, were held to raise suf-ficient grounds for motion to vacate. 88

However, improper comments made by the trial judge to thejury after the foreman has announced its verdict, but before thejury has been polled at the defendant's request, is not a ground fora motion to vacate.58 9

Improper argument by the United States Attorney to the juryis not an adequate ground for a motion.5 90 However, in a casein which, so far as the record showed, no one but the defendant or aco-defendant would have contradicted a Government witness, theprosecutor's statement to the jury that the evidence stood unim-peached and uncontradicted was an improper comment on the de-fendant's failure to testify, and a motion to vacate was granted.591

That a limitation has been placed upon time for argument at thetrial cannot be raised by motion.5 92

B. NEWSPAPER PUBLICITY

Newspaper publicity before and during trial is not normally aground for motion. 593 It has, however, been raised by motion insome cases.594

C. PAROLE

The motion to vacate does not lie on the ground that the boardof parole has failed or refused to consider the prisoner eligible for

parole. 95 The validity of a revocation of parole may be challengedby seeking a declaratory judgment in the District of Columbia,

588. Chalupiak v. United States, 223 F.2d 522 (6th Cir. 1955).589. Wagstaff v. United States, 243 F.2d 665 (D.C. Cir. 1957).590. Lewis v. United States, 235 F.2d 580 (9th Cir.), cert. denied, 352

U.S. 897 (1956); Adams v. United States, 222 F.2d 45, 46 (D.C. Cir. 1955);United States v. Edwards, 152 F. Supp. 179, 184 (D.D.C. 1957).

591. Desmond v. United States, 345 F.2d 225 (1st Cir. 1965).592. Jones v. United States, 252 F. Supp. 781 (W.D. Okla. 1966).593. Wingo v. United States, 244 F.2d 800 (6th Cir. 1957); United States

v. Rosenberg, 200 F.2d 666, 668 (2d Cir. 1952), cert. denied, 345 U.S. 965(1953); United States v. Edwards, 152 F. Supp. 179, 184 (D.D.C. 1957);United States v. Robinson, 143 F. Supp. 286, 292 (W.D. Ky. 1956). See 6ORFIELD 581 (1967).

594. See McDonald v. United States, 282 F.2d 737, 741 (9th Cir. 1960).595. United States v. Walker, 117 F. Supp. 503 (S.D.N.Y. 1953).

1969]


instead of by application for habeas corpus where the prisoner isheld.596

D. PRISON TREATMENT

Mistreatment by prison authorities after conviction is not aground for relief by motion to vacate. 97 However, it has beenruled that motion to vacate is the proper remedy, not an action fordeclaratory judgment and injunction, for establishing the right ofa prisoner to mail a letter to the chief probation officer seekinginformation with respect to his presentence report.5 98

E. DISQUALIFICATION OF JUDGE

Bias of the judge may not be raised on a motion to vacate ac-cording to some cases,599 but rather should be raised on appeal fromthe conviction. 600 The Fifth Circuit has held that the fact that thedistrict judge had been the United States Attorney while that of-fice was presenting the case out of which the perjury prosecutionunder consideration arose does not disqualify him from trying thecase.

60 '

A motion to vacate has been used to attack the presence of ajudge from another district designated by the Chief Justice to sit.6 02

A motion to vacate on the ground of trial by a judge having arecess appointment was denied,60 3 although the court thought thatcollateral attack was permissible. Prior cases 60 4 seem to deny this.

F. CONSTITUTIONALITY OF THE STATUTE

The constitutionality of the statute under which the prisonerwas convicted may be challenged by motion to vacate, even though

596. Robbins v. Reed, 269 F.2d 242 (D.C. Cir. 1959).597. Sanders v. United States, 183 F.2d 748 (4th Cir. 1950).598. Pope v. Daggett, 350 F.2d 296 (10th Cir. 1965).599. Delegal v. United States, 363 F.2d 433 (5th Cir. 1966); United

States v. Pugh, 106 F. Supp. 209, 210 (D. Guam 1952). Cf. Barkan v.United States, 362 F.2d 158 (7th Cir.), cert. denied, 385 U.S. 882 (1966);Gallarelli v. United States, 260 F.2d 259, 261 (1st Cir. 1958).

600. Simmons v. United States, 302 F.2d 71, 77 (3d Cir. 1962).601. Adams v. United States, 302 F.2d 307 (5th Cir. 1962). Judge

Brown dissented.602. Barnhill v. United States, 305 F.2d 158 (5th Cir. 1962) (but on the

facts it was found that the Chief Justice had acted within his powers as tothe time interval of designation).

603. United States v. Allocco, 200 F. Supp. 868 (S.D.N.Y. 1961), aff'd,305 F.2d 704 (2d Cir. 1962), noted, 15 ALA. L. REV. 228 (1962); 43 BOSTONU. L. REV. 159 (1963); 12 CATHOLIC U.L. REV. 29 (1963); 38 N.Y.U. L. REV.169 (1963); 111 U. PA. L. REV. 364 (1963); 38 WASH. L. REV. 453 (1963).

604. See Ex parte Ward, 173 U.S. 452 (1899).

[Vol. 2

MOTION TO VACATE

the issue was not raised in the criminal prosecution resulting inconviction. 605

G. JURISDICTION

A motion to vacate has been used to attack the jurisdiction ofa federal district court on the ground of prior state jurisdiction.6 06

A conflict between state and federal authorities on an importantquestion of law may warrant the motion.60 7

A motion to vacate lies in a murder prosecution of one Indianfor killing another Indian where the offense is not subject to federaljurisdiction. 0 8 It has been said that the question of whether a courthas jurisdiction of a crime should not ordinarily be raised on motionto vacate, but the absence of Government jurisdiction over an armybase where the crime was committed would be an exceptional cir-cumstance which, if proved, would justify a motion. 60 9

H. INSANITY

It has been held that insanity at the time of the offense cannotbe raised on a motion to vacate.6 10

A prisoner not arraigned or sentenced for a crime, but incarcer-ated as mentally incompetent, cannot move to vacate.61' A motiondoes not lie to release one from a hospital after a verdict of notguilty by reason of insanity. 612 Habeas corpus is the properremedy.

The issue of incompetency may be raised by a lawyer asamicus curiae even though the prisoner does not wish to raise it. 613

Where the prisoner is insane, the court may appoint a guardian adlitem to make the motion to vacate.614

605. McCann v. United States, 217 F. Supp. 751 (D. Colo. 1963).606. United States v. Mierzanka, 89 F. Supp. 573 (W.D. Mich. 1949).607. Bowen v. Johnston, 306 U.S. 19, 26 (1939) (habeas corpus); Keto v.

United States, 189 F.2d 247, 251 (8th Cir. 1951); United States v. Harrison,156 F. Supp. 756 (D.N.J. 1957).

608. Tooisgah v. United States, 186 F.2d 93, 95 (10th Cir. 1950).609. Marcella v. United States, 344 F.2d 876, 882 (9th Cir. 1965); Light-

foot v. United States, 327 F.2d 207 (10th Cir. 1964) (venue); McGuire v.United States, 289 F.2d 405 (9th Cir. 1961); Markham v. United States,215 F.2d 56 (4th Cir. 1954), cert. denied, 348 U.S. 939 (1955). But seePutnam v. United States, 337 F.2d 313, 316 (10th Cir. 1964); 6 ORFiELD426 (1967).

610. Brown v. United States, 186 F. Supp. 410 (D. Ore. 1960).611. Hill v. United States, 206 F.2d 204 (6th Cir.), cert. denied, 346

U.S. 859 (1953).612. O'Beirne v. Overholser, 287 F.2d 133 (D.C. Cir. 1960).613. Seidner v. United States, 260 F.2d 732 (D.C. Cir. 1958).614. Smith v. United States, 174 F. Supp. 828, 835 (S.D. Cal. 1959).

19691


In 1949 the Sixth Circuit held that a sentencing court's rulingon insanity, made subsequent to the offense to establish that thecourt should not proceed with the trial and verdict, is not open tocollateral attack. 15 It should be reviewed on appeal. The TenthCircuit has stated broadly: "A judgment of conviction may not becollaterally attacked on the ground that the prisoner was insaneeither at the time of the commission of the offense or at the time ofconviction."6 1

Insanity at the time of entering a plea without counsel is aground for the motion. 17 In many cases the courts have goneinto the issue of insanity at the hearing on the motion. 18

Pointing out that the courts are divided on the question, theCourt of Appeals for the District of Columbia has held that in-sanity at the trial may be attacked by motion to vacate.6 19 Theruling was apparently approved by the Supreme Court, which re-manded the case to the district court for a hearing on the sanity ofthe prisoner at the time of the trial.2 0 A district court has con-cluded that a federal prisoner can raise the issue of insanity at thetrial by a motion to vacate irrespective of the lapse of time, and theprisoner is entitled to a plenary hearing unless the court in advanceof trial has ascertained the apparent mental capacity of the accused,or has otherwise conducted a hearing on the question.62 '

The Tenth Circuit has ruled that when the issue of insanityof the accused was not presented to the trial court prior to theimposition of sentence and arose only after commitment to thepenitentiary to serve the sentence, and the accused was declared in-sane after his arrival at the penitentiary, the accused's remedy wasunder the incompetency statute, and not by motion to vacate.02 2

615. McIntosh v. Pescor, 175 F.2d 95, 99 (6th Cir. 1949).616. Hahn v. United States, 178 F.2d 11, 12 (10th Cir. 1949). See also

Jude v. United States, 262 F.2d 117 (10th Cir. 1958), cert. denied, 359 U.S.960 (1959); Dodd v. United States, 222 F.2d 175 (10th Cir. 1955); Hallowellv. Hunter, 186 F.2d 873 (10th Cir. 1951); United States v. Meadows, 140F. Supp. 184 (W.D. Mich. 1955); Melson v. Steele, 114 F. Supp. 594 (W.D.Mo. 1953).

617. Sanders v. United States, 205 F.2d 399 (5th Cir. 1953).618. United States v. Di Palermo, 228 F.2d 901 (2d Cir. 1956); Hill v.

United States, 223 F.2d 699 (6th Cir. 1955); Ruebush v. United States,206 F.2d 810 (10th Cir. 1953); United States v. Herrell, 133 F. Supp. 129(E.D. Tenn. 1955).

619. Bishop v. United States, 223 F.2d 582, 584 (D.C. Cir. 1955), noted,58 W. VA. L. REV. 94 (1955). The court affirmed the district court onthe facts.

620. Bishop v. United States, 350 U.S. 961 (1956). Accord, Brown v.United States, 267 F.2d 42 (5th Cir. 1959).

621. Owsley v. Cunningham, 190 F. Supp. 608, 613 (E.D. Va. 1961).622. Gordon v. United States, 250 F.2d 676 (10th Cir. 1957). See also

Nunley v. United States, 283 F.2d 651 (10th Cir. 1960).

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MOTION TO VACATE

There is, however, subsequent contrary authority. 23

Where the Director of the Bureau of Prisons did not certifythat the prisoner had been examined by a board of examiners asto his mental competency, the statute on mental competency can-not be invoked by the prisoner, but he may move to vacate thesentence. 24 The statute on mental competency does not pre-clude the use of the motion to vacate.625 It makes no differencethat the defendant was represented by counsel at his trial. It hasbeen held, however, that when there have been proceedings underthe competency statute, a motion to vacate does not lie.626

It has been held that a defendant is entitled to have a judgmentof conviction vacated, rather than a hearing to determine, threeyears after trial, his competency at the time of trial, on a showingthat his pretrial behavior had raised a serious question as to hiscompetency, that the United States Attorney had petitioned forexamination into his competency, and that the defendant had beentried, convicted, and sentenced before completion of the exami-nation.6 27 Where, however, prior to a plea of guilty and sentencing,the defendant had been examined by a court-appointed psychiatristwho reported competency, a motion to vacate because of insanitydoes not lie.628 Moreover, the defendant's allegation of his formeradjudication of insanity in a state court does not require a judicialdetermination of sanity after a report from a qualified psychiatristthat he is competent to stand trial.629

A psychiatric report allowing a postjudgment examinationwhich diagnosed the defendant's condition as "schizophrenic re-action, undifferentiated type, suspected," required a hearing to de-termine whether the defendant had been competent to stand trial,and required that the hearing be had, where not had earlier, onmotion to vacate. 63 0

623. Simmons v. United States, 253 F.2d 909, 912 (8th Cir. 1958).624. United States v. Mancuso, 152 F. Supp. 355, 359 (W.D. La. 1957).

See also Bell v. United States, 269 F.2d 419 (9th Cir. 1959); Krupnick v.United States, 264 F.2d 213 (8th Cir. 1959) (examination by general phy-sician); Lloyd v. United States, 247 F.2d 522 (D.C. Cir. 1957). The statuteon mental incompetency is 18 U.S.C. § 4245 (1964).

625. Simmons v. United States, 253 F.2d 909, 912 (8th Cir. 1958);Gregori v. United States, 243 F.2d 48, 54 (5th Cir. 1957). A prisoner neednot seek certification of insanity at the time of the trial under 18 U.S.C.§ 4245 (1964) to move to vacate. Fisher v. United States, 317 F.2d 352(4th Cir. 1963); United States v. Cannon, 310 F.2d 841 (2d Cir. 1962).

626. Handlon v. United States, 246 F.2d 866 (6th Cir. 1957).627. Sullivan v. United States, 205 F. Supp. 545, 550 (S.D.N.Y. 1962).628. Stone v. United States, 196 F. Supp. 386, 390 (S.D. Cal. 1960).629. Hereden v. United States, 286 F.2d 526 (10th Cir. 1961).630. Van De Bogart v. United States, 305 F.2d 583, 587 (5th Cir. 1962).

1969]


Competency to stand trial is reviewable on motion to vacateeven though a psychiatrist has concluded on the basis of a two-hour examination that the prisoner would be competent to standtrial.631 In the absence of a hearing or finding that the prisonerwas competent and in the absence of a challenge to the adequacyof allegations of the prisoner, an evidentiary hearing must be held.The prisoner should be present and have counsel.6 32

Where the prisoner alleges mental incompetency at the time ofhis guilty plea, it is error to dispose of the motion to vacate with-out a hearing in reliance on reports of doctors at the Medical Cen-ter for Federal Prisoners, since the defendant is denied the oppor-tunity to cross-examine the doctors and to present evidence of hisown as to his mental condition.6 3 3

The view of the Fifth Circuit has been stated by Judge Brownto be:

First, mental competency may be raised by a § 2255 pro-ceeding. Second, this right is not conditioned upon, norsatisfied merely by compliance with the procedures out-lined in 18 U.S.C.A. §§ 4241, 4244, 4245. . . . But this doesnot prohibit or discourage use of this statutory machineryfor psychiatric examination. This supplies to the DistrictJudge a probable tool to use in obtaining the evidentialinformation necessary to rule properly on the issues raisedby the § 2255 motion.63 4

A proceeding for motion to vacate lies to show incapacity at thetrial due to drugs. 35 The statute on insanity proceedings63 6 is notapplicable.6 37 However, a motion to vacate will not be grantedmerely because the prisoner was a chronic alcoholic and neithercounsel nor a psychiatrist had been appointed. 638

631. Stone v. United States, 358 F.2d 503, 506 (9th Cir. 1966).632. Id.633. Butler v. United States, 361 F.2d 869 (10th Cir. 1966).634. Johnson v. United States, 344 F.2d 401, 405-06 (5th Cir. 1965). See

Swadron, Collateral Attack of Federal Convictions on the Ground of Men-tal Incompetency, 39 TEMPLE L.Q. 117 (1966).

635. France v. United States, 358 F.2d 946 (10th Cir. 1966); Juelich v.United States, 316 F.2d 726 (5th Cir. 1963); Hayes v. United States, 305F.2d 540, 543 (8th Cir. 1962); Catalano v. United States, 298 F.2d 616(2d Cir. 1962); Johnston v. United States, 292 F.2d 51 (10th Cir.), cert.denied, 368 U.S. 906 (1961); Coates v. United States, 273 F.2d 514 (D.C. Cir.1959); Pledger v. United States, 272 F.2d 69 (4th Cir. 1959); Sanders v.Allen, 100 F.2d 717, 718 (D.C. Cir. 1938) (habeas corpus); Wood v. UnitedStates, 251 F. Supp. 310 (W.D. Va. 1966).

636. 18 U.S.C. § 4245 (1964).637. Johnston v. United States, 292 F.2d 51 (10th Cir.), cert. denied,

368 U.S. 906 (1961).638. Huddleston v. United States, 358 F.2d 862 (10th Cir. 1966).

[Vol. 2

Documents

Motion to Vacate under 28 U.S.C. Section 2255: Part Two